DEPARTMENT OF ENVIRONMENTAL QUALITY

LAND AND WATER MANAGEMENT DIVISION

WETLANDS PROTECTION

By authority conferred on the department of environmental quality by section 30319 of

1994 PA 451, as amended, MCL 324.30319.

R 281.921 Definitions.

Rule 1. (1) As used in these rules:

(a) "Act" means Act No. 203 of the Public Acts of 1979, being S281.701 et seq. of the

Michigan Compiled Laws.

(b) "Contiguous" means any of the following:

(i) A permanent surface water connection or other direct physical contact with an

inland lake or pond, a river or stream, one of the Great Lakes, or Lake St. Clair.

(ii) A seasonal or intermittent direct surface water connection to an inland lake or

pond, a river or stream, one of the Great Lakes, or Lake St. Clair.

(iii) A wetland is partially or entirely located within 500 feet of the ordinary high

watermark of an inland lake or pond or a river or stream or is within 1,000 feet of the

ordinary high watermark of one of the Great Lakes or Lake St. Clair, unless it is

determined by the department, pursuant to R 281.924(5), that there is no surface water

or groundwater connection to these waters.

(iv) Two or more areas of wetland separated only by barriers, such as dikes, roads,

berms, or other similar features, but with any of the wetland areas contiguous under

the criteria described in paragraph (i), (ii), or (iii) of this subdivision. The connecting

waters of the Great Lakes, including the St. Marys, St.Clair, and Detroit rivers, shall be

considered part of the Great Lakes for purposes of this definition.

(c) "General permit" means a permit which, as authorized by section 10 of the act, is

issued for categories of minor activities, as defined in subdivision (f) of this subrule.

(d) "Individual permit" means a permit which, as authorized by sections 7, 8, and 9 of

the act, is issued for categories of activities that are not classified as minor.

(e) "Inland lake or pond, a river or stream" means any of the following:

(i) A river or stream which has definite banks, a bed, and visible evidence of a

continued flow or continued occurrence of water.

(ii) A natural or permanent artificial inland lake or impoundment that has definite

banks, a bed, visible evidence of a continued occurrence of water, and a surface area

of water that is more than 5 acres. This does not include lakes constructed by

excavating or diking dry land and maintained for the sole purpose of cooling or

storing water and does not include lagoons used for treating polluted water.

(iii) A natural or permanent artificial pond that has permanent open water with a

surface area that is more than 1 acre, but less than 5 acres. This does not include ponds

constructed by excavating or diking dry land and maintained for the sole purpose of

cooling or storing water and does not include lagoons used for treating polluted water.

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(f) "Minor activities" means activities that are similar in nature, that will cause only

minimal adverse environmental effects when performed separately, and that will

have only minimal cumulative adverse effects on the environment.

(g) "Wetland vegetation" means plants that exhibit adaptations to allow, under normal

conditions, germination or propagation and to allow growth with at least their root

systems in water or saturated soil.

(2) As used in the act:

(a) "Electric distribution line" means underground lines below 30 kilovolts and

lines supported by wood poles.

(b) "Electric transmission line" means those conductors and their necessary

supporting or containing structures located outside of buildings that are used for

transmitting a supply of electric energy, except those lines defined in subdivision (a)

of this subrule.

(c) "Pipelines having a diameter of 6 inches or less" means a pipe which is equal to or

less than what is commonly referred to as a 6-inch pipe and which has an actual measured

outside diameter of less than 6.75 inches.

(3) Terms defined in the act have the same meanings when used in these rules.

History: 1988 AACS.

Editor's Note: An obvious error in R R 281.921 was corrected at the request of the promulgating agency,

pursuant to Section 56 of 1969 PA 306, as amended by 2000 PA 262, MCL 24.256. The rule containing

the error was published in AACS 1988. The memorandum requesting the correction was published

in Michigan Register, 2008 MR 18.

R 281.922 Permit applications.

Rule 2. (1) An application for a permit shall be made on a form prescribed and

provided by the department.

(2) An application for a permit shall not be deemed as received or filed until the

department has received all information requested on the application form, the

application fee, and other information authorized by the act and necessary to reach a

decision. The period for granting or denying an application begins as soon as all

such information and the application fee are received by the department.

(3) Application fees shall be submitted to the department with the initial submittal

of an application form. The fee shall be paid by check, money order, or draft made

payable to: "State of Michigan."

(4) An application may be considered to be withdrawn and the file for the

application may be closed if an applicant fails to respond to any written inquiry or

request from the department for information requested as a part of the application form

within 30 days of the request or such longer period of time as needed by the

applicant to provide the information agreed to, in writing, between the applicant

and the department.

(5) Upon request, the department shall provide any person with a copy of a permit

application and supporting documents consistent with all provisions of Act No.

442 of the Public Acts of 1976, as amended, being S15.231 et seq. of the Michigan

Compiled Laws.

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(6) Decisions reached by the department which deny or modify an application

for a permit shall be supported by written documentation to the applicant based upon

the applicable criteria contained in section 9 of the act. The department shall create a

form based on the criteria from section 9 of the act to be completed and placed

into each application file. When a proposed activity involves a coordinated review

by federal agencies as provided for under the act and section 404 of title IV of the

clean water act of 1977, 33 U.S.C. S1344, the department shall prepare a fact sheet

pursuant to 40 C.F.R. S124.8 (April 1, 1983) and 40 C.F.R.S233.39 (April 1, 1983)

for inclusion in the application file.

History: 1988 AACS.

R 281.922a Permit application review criteria.

Rule 2a. (1) The department shall review a permit application to undertake an activity

listed in section 30304 of the act according to the criteria in section 30311 of the act.

(2) As required by subsection 30311(4) of the act, a permit applicant shall bear the

burden of demonstrating that an unacceptable disruption to aquatic resources will not

occur as a result of the proposed activity and demonstrating either of the following:

(a) The proposed activity is primarily dependent upon being located in the wetland.

(b) There are no feasible and prudent alternatives to the proposed activity.

(3) A permit applicant shall provide adequate information, including documentation

as required by the department, to support the demonstrations required by section 30311

of the act. The department shall independently evaluate the information provided by

the applicant to determine if the applicant has made the required demonstrations.

(4) A permit applicant shall completely define the purpose for which the permit is

sought, including all associated activities. An applicant shall not so narrowly define the

purpose as to limit a complete analysis of whether an activity is primarily dependent upon

being located in the wetland and of feasible and prudent alternatives.

The

department shall independently evaluate and determine if the project purpose has been

appropriately and adequately defined by the applicant, and shall process the application

based on that determination.

(5) The department shall consider a proposed activity as primarily dependent upon

being located in the wetland only if the activity is the type that requires a location within

the wetland and wetland conditions to fulfill its basic purpose; that is, it is wetland-

dependent. Any activity that can be undertaken in a non-wetland location is not primarily

dependent upon being located in the wetland.

(6) An alternative is feasible and prudent if both of the following provisions apply:

(a) The alternative is available and capable of being done after taking into

consideration cost, existing technology, and logistics.

(b) The alternative would have less adverse impact on aquatic resources. A feasible and

prudent alternative may include any or all of the following:

(i) Use of a location other than the proposed location.

(ii) A different configuration.

(iii) Size.

(iv) Method that will accomplish the basic project purpose.

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The applicant shall demonstrate that, given all pertinent information, there are no

feasible and prudent alternatives that have less impact on aquatic resources. In

making this demonstration, the applicant may provide information regarding factors

such as alternative construction technologies; alternative project layout and design;

local land use regulations and infrastructure; and pertinent environmental and resource

issues. This list of factors is not exhaustive and no particular factor will necessarily

be dispositive in any given case.

(7) If an activity is not primarily dependent upon being located in the wetland, it is

presumed that a feasible and prudent alternative exists unless an applicant clearly

demonstrates that a feasible and prudent alternative does not exist.

(8) Unless an applicant clearly demonstrates otherwise, it is presumed that a feasible and

prudent alternative involving a non-wetland location will have less adverse impact on

aquatic resources than an alternative involving a wetland location.

(9) An area not presently owned by the permit applicant that could reasonably be

obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the

proposed activity is a feasible and prudent alternative location.

(10) An alternative may be considered feasible and prudent even if it does not

accommodate components of a proposed activity that are incidental to or severable from

the basic purpose of the proposed activity.

(11) An alternative may be considered feasible and prudent even if it entails higher

costs or reduced profit. However, the department shall consider the reasonableness of

the higher costs or reduced profit in making its determination.

(12) The department may offer a permit for a modification of an activity proposed in

an application if the proposed activity cannot be permitted under the criteria listed in

section 30311 of the act and if the modification makes that activity consistent with the

criteria listed in section 30311 of the act.

(a) The applicant may accept the permit for the modification of the proposed

activity by signing it and returning it to the department within 30 days of the date of the

offer. The permit shall be considered issued upon countersignature by the department.

(b) The permit application is considered denied if the applicant does not sign and

return the permit for the modification of the proposed activity to the department within

thirty days of the date of the offer. The permit applicant may then appeal the denial

pursuant to sections 30307(2) and 30319(2) of the act.

(c) The date on which the modification is offered shall be considered the date of the

department's approval or disapproval of the application pursuant to section 30307(2) of

the act.

History: 1988 AACS.

R 281.923 Permits.

Rule 3. (1) An application for a proposed activity which is within a general permit

category may be processed and issued by the department without the noticing or

hearings specified under sections 7, 8, and 9 of the act. The department may process,

by public notice, an application which would normally qualify under a general permit

category to allow more opportunity for public review and comment. Categories of

minor activities will be established in the general permit in accordance with section 10

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of the act. The factors set forth in sections 3 and 9 of the act shall be considered in

determining whether such a permit is in the best interest of the public.

(2) Applications for activities that are not classified as minor shall be reviewed through

the process prescribed under sections 7, 8, and 9 of the act. The department may issue

an individual permit 21 days after the mailing of notification of the permit

application if comments of nonobjection have been received from the municipality, if

a public hearing has not been requested, and if the proposed activities are otherwise

in accordance with the act.

(3) If the department does not approve or disapprove the permit application

within the time provided by section 8(2) of the act, the permit application shall be

considered approved and the department shall be considered to have made the

determination required by section 9 of the act.

(4) When a project involves activities regulated under Act No. 247 of the Public

Acts of 1955, as amended, being S322.701 et seq. of the Michigan Compiled

Laws, or Act No. 346 of the Public Acts of 1972, as amended, being S281.951 et

seq. of the Michigan Compiled Laws, or the act, the applicant shall submit 1

application for all activities regulated under these acts. Only 1 permit for these

activities will be issued or denied by applying the criteria of the appropriate acts. If

a permit is issued, conditions shall reflect the requirements of all appropriate acts.

(5) A permit may be issued for a period extending until the end of the following

calendar year. A permit may be issued for a longer period of time if agreed to, in

writing, between the applicant and the department. Before a permit expires, extensions

of time may be granted by the department upon receipt of a written request from

the permit holder explaining why such an extension is needed to complete the project.

Up to two 12-month extensions shall be granted if there is no change in the activity

for which the permit was originally issued. Administrative fees shall not be required

for such extensions.

(6) Any permit issued under the act does not obviate the necessity of receiving,

when applicable, approval from other federal, state, and local government agencies.

(7) Any permit issued by the department under the act may be revoked or suspended,

after notice and an opportunity for a hearing, for any of the following causes:

(a) A violation of a condition of the permit.

(b) Obtaining a permit by misrepresentation or failure to fully disclose relevant facts

in the application.

(c) A change in a condition that requires a temporary or permanent change in the

activity.

History: 1988 AACS.

R 281.924 Wetland Identification and Assessment.

Rule 4. (1) When assessing whether a parcel of property or portion of a parcel is

wetland, as required by section 30321 of the Act, the department shall utilize criteria

consistent with the definition of "wetland" provided in section 30301(d) of the act. The

department shall provide a written assessment report to the person who owns or leases

the property or his or her agent within 30 days of the on-site evaluation, whether the

parcel contains wetland or nonwetland, or both, and the basis for the determination.

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The department shall evaluate a parcel or any portion of a parcel as identified by the

person making the request.

(2) An assessment of wetlands on a parcel of property by the department may include

any of the following, at the discretion of the person making the request:

(a) The provision of maps and supporting information that show currently mapped

wetlands on the property.

(b) An on-site identification of areas containing wetland and non-wetland on the

property.

(c) An on-site review to confirm the identification of wetland boundaries on the

property by a wetland professional.

(3) When identifying wetlands, the department shall rely on visible evidence that

the normal seasonal frequency and duration of water is above, at, or near the surface of

the area to verify the existence of a wetland. Under normal circumstances, the

frequency and duration of water that is necessary to determine an area to be a

wetland will be reflected in the vegetation or aquatic life present within the area

being considered. A wetland that has not been recently or severely disturbed will

contain predominance, not just an occurrence, of wetland vegetation or aquatic life. If

there is a predominance of wetland vegetation, and if there is no direct visible evidence

that water is, or has been, at or above the surface, then the department shall use the

following characteristics of the soils or substrate to verify the existence of a wetland:

(a) The presence of a soil that is saturated, flooded, or ponded long enough during

the growing season to develop anaerobic conditions in the upper part of the soil that favor

the growth and regeneration of wetland vegetation.

(b) Physical or chemical characteristics of a soil column that provide evidence of the

current and recent degree of saturation or inundation. Characteristics, such as a

gleyed or low chroma matrix, mottling, or chemically demonstrated anaerobic

conditions, can be utilized to identify the current and recent depth and fluctuation of the

water table or inundation.

(4) If the department makes a determination that a wetland otherwise outside of the

jurisdiction of the act is essential to the preservation of the natural resources of the state

under section 30301(d)(iii) of the act, the department shall provide the findings, in

writing, to the legal landowner or lessee stating the reasons for the determination. In

making the determination, the department must find that 1 or more of the following

functions apply to a particular site:

(a) It supports state or federal endangered or threatened plants, fish, or wildlife

specified in section 36501 of 1994 PA 457, MCL 324.36501.

(b) It represents what the state has identified as a rare or unique ecosystem.

(c) It supports plants or animals of an identified regional importance.

(d) It provides groundwater recharge documented by a public agency.

(5) Upon the request of a person who owns or leases a parcel of property or his or her

agent, the department shall determine if there is no surface or groundwater connection

that meets the definition of "contiguous" under R 281.921(l)(b)(iii). The department

shall make the determination in writing and shall provide the determination to the

person making the request within a reasonable period of time after receipt of the request.

(6) (a) A person who requests an assessment shall submit a form provided by the

department. The form shall contain all information required under section 30321(3) of

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the act, and shall be accompanied by a check for the appropriate fee as set forth in this

rule.

(b) All fees are nonrefundable.

(c) A person who owns or leases a parcel of property or his or her agent may request

any of the following 3 levels of assessment with corresponding levels of fees:

(i) For a fee of $100.00, the department will provide copies of wetland information

immediately available for an identified area, including state and federal maps on file with

the department that show the approximate location of wetlands on the parcel. In

addition, information specified by section 30321(e), (f), and (g) of the act,

regarding regulatory processes, limitations, and appeals will be provided to a person

who makes a request. An application for this service is limited to not more than an area

covering 4 adjoining square miles. This level of service shall be available in counties

where the preliminary or final wetland inventory maps in section 30321 of the act have

not been completed. The department shall provide the preliminary or final wetland

inventory map in electronic form or a paper copy at cost. Since the information and maps

provided will not be based upon an on?site review, they will be useful for planning

purposes, but the department will not certify where wetlands are and are not specifically

located on the given parcel.

(ii) For a fee of $500.00 for 1 acre or less, the department will perform an on-site

wetland identification of a parcel or portion of a parcel that has its boundaries marked by

the person who makes the request, to identify and describe areas that are and are not

wetland on the site, unless identification and description are not possible due to site

conditions, as outlined under subrule (7) of this rule. The fee for the service will

increase by $250.00 per acre or fraction thereof for an assessment area larger than 1

acre. An application for this service is limited to an area of 5 acres or less. If the

assessment report determines that the area or part of the area evaluated is not wetland,

then the report shall state that the department lacks jurisdiction over the area that is not

wetland, if any, and that the determination that an area is not wetland is binding on

the department for 3 years from the date of the assessment.

(iii) For a fee of $500.00 for 1 acre or less, the department will perform an on-site

review of a mapped, flagged, and otherwise identifiable area to confirm specific

boundaries established by a wetland professional between wetlands and areas that are

not wetlands. The fee for the service will increase by $50.00 per acre or fraction

thereof to confirm areas identified as wetland and $20.00 per acre or fraction

thereof to confirm areas identified as non wetland. The wetland and nonwetland

boundaries must be flagged by a wetland professional representing the person who

made the request. The boundaries must have been established utilizing methods and

procedures consistent with the Act and these rules. If the department finds substantial

errors during the confirmation process and the person making the request wishes to

proceed, then the department will require that a new wetland boundary be identified

by a wetland professional representing the person who made the request and that new

feesin the amount of 1/2 of the original fee be submitted for the on-site confirmation of

the new

wetland boundary and the assessment report. If the assessment report

determines that the area or part of the area evaluated is not wetland, then the report will

state that the department lacks jurisdiction over the area that is not wetland and that

the determination that an area is not wetland is binding on the department for 3 years

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from the date of the assessment. If documentation of the specific boundary is desired,

then the person who is making the request will provide, for department approval, an

acceptable and reproducible survey of the agreed upon boundaries.

(iv) The department will provide the report within 20 calendar days of a complete

request, for an increased fee reflecting the additional cost to the department. For

subsection (c)(ii), this increased fee will be $1500.00 for 1 acre or less and $750.00 per

acre or fraction thereof for an assessment area larger than 1 acre. For subsection

(c)(iii), this increased fee will be $1500.00 for 1 acre or less, $150.00 per each additional

acre or fraction thereof to confirm areas identified as wetland, and $60.00 per

each additional acre or fraction thereof to confirm areas identified as non wetland. If

weather or other conditions prohibit the completion of the report within 20 calendar

days, the department will refund the difference between the higher fee and the normal

fee.

(7) If recent severe disturbances of the site have occurred, for example, removal of

native vegetation, disturbance of soils, or diversion of drainage, making it impossible

during a routine site visit to determine whether or not the area requested for assessment

contains or has contained wetland or nonwetland, then the department will provide the

person who made the request with a report that specifies the reasons for its inability

to make a determination. The department will include with the report a description of

the necessary technical information to be provided by the person who made the request in

order for the department to make a final wetland identification or confirm a boundary.

(8) A written request for a reassessment, pursuant to section 30321(5) of the act, shall

be submitted to the department no later than 60 days after the receipt of the written

assessment report. The department shall conduct the reassessment, if possible, during

the same calendar year as the original assessment or as soon as weather or other

conditions allow.

History: 1988 AACS; 1998 AACS; 2006 AACS.

R 281.925 Mitigation.

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:

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(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.

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(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.

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(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.

History: 1988 AACS.

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