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 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.

(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

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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.

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

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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 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

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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. 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.

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(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 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

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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 fees in 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 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.

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(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:

(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.

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(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.

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(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

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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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