MACDC Intercounty Drain Procedures Training

1. MACDCIntercounty Drain Procedures Training Complying with Common Parts of NREPA Stacy Hissong, Fahey Schultz Burzych Rhodes PLC Amy Lounds, MDEQ, Water Resources Division Amy Berry, MDEQ , Water Resources Division February 16, 2017 macdc.us

2. Natural Resources and Environmental Protection Act (NREPA) Summary • Part 31 Floodplains • Part 91 Soil Erosion and Sedimentation Control • Part 301 Inland Lakes and Streams • Part 303 Wetland Protection • Part 365 Threatened and Endangered Species macdc.us

3. Part 31: Floodplains Drain Code Exemption Rule 323.1312 These rules do not apply to any of the following: b) An improvement proposed under Act No. 40 of the Public Acts of 1956, as amended, being Section 280.1 et seq. of the Michigan Compiled Laws (aka Drain Code). macdc.us

4. Part 91: Soil Erosion and Sedimentation Control • Drainage Board must determine how to meet compliance under Part 91 • Compliance is for drainage district as a whole, not by individual county macdc.us

5. Intercounty Drain Process for SESC Drain Commissioners with APA Status • Drainage board gives responsibility to DC with APA status • DC prepares plan and agrees to inspect macdc.us

6. Intercounty Drain Process for SESC No Board Members with APA Status • Drainage board authorizes DC to prepare Part 91 application on behalf of drainage district • DC must agree to provide copy of approved permit, plan, and have certified inspectors available macdc.us

7. SESC Plans • Drainage board should approve SESC plan • Contractor required to follow plan • MACDC SESC Manual macdc.us

8. Notice of Coverage (NOC) • 5-acre threshold within entire drainage district • Drainage board passes resolution designating county • Coordinate submittal • Provide to all drainage board members • Inspections macdc.us

9. Part 91 Violations • Violation is to entire drainage board/district • Fines up to $25,000/day • Administrative Consent Orders macdc.us

10. Michigan’s Section 404 Program • Michigan is first state to receive EPA approval to administer Section 404 of Federal Clean Water Act (CWA) • 301 and 303 permits are “joint permits” that also provide authorization under Section 404 of the federal CWA and permitting from the Army Corps where needed macdc.us

11. Michigan’s Section 404 Program • State “404” permits are issued under state law • Laws, policies and procedures specific to state needs while federally consistent • Permitting staff with local knowledge • Authorizations under Section 401 and CZM, and screening for HPA and T&E macdc.us

12. Part 301: Inland Lakes & Streams What is a “Stream”???? • Section 30101(i) • A natural or artificial river, stream, creek, or any other body of water • Definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water macdc.us

13. Part 301: Inland Lakes & Streams Regulated Activities in Streams: • Dredge or fill bottomland • Construct, enlarge, extend, remove, or place a structure on bottomland (below OHWM) • Create, enlarge, or diminish an inland lake or stream • Structurally interfere with the natural flow of an inland lake or stream • Construct an artificial waterway that ultimately connects to or is created within 500 feet of the OHWM of an existing inland lake or stream • Connect any natural or artificial water with an existing inland lake or stream macdc.us

14. Part 301: Inland Lakes & Streams Exempt Activities: • MCL 324.30101(g) • Maintenance defined as “physical preservation of the location, depth, and bottom width of a drain and appurtenant structures to restore the function and approximate capacity of the drain as constructed or modified” • Includes specific list of exempt activities • Does not include mainstream portions of certain drains identified under rule (R.281.818) macdc.us

15. Part 303: Wetland Protection What is a “wetland”???? • Section 30301(w) • “Land characterized by the presence of water at a frequency and duration to support and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh.” Pictures of floodplain wetland taken two weeks apart. macdc.us

16. Part 303: Wetland Protection Regulated Activities in Wetland • Place fill material in a wetland • Remove soil or minerals from a wetland • Construct, operate or maintain a use or development in a wetland • Drain surface water from a wetland FILL DRAIN macdc.us

17. Part 303: Wetland Protection Exempt Activities: • MCL 324.30305(2)(i) • “Maintenance” of drains • Includes “placement of spoils removed from drain in locations where spoils have been previously placed” • Does not include modification that results in additional wetland drainage macdc.us

18. 301 and 303 Permitting Process In general, when planning a project, a permit applicant must follow these steps, in this order: • Avoidance • 2. Minimization - BMPs • 3. Replace Unavoidable Lost Resources macdc.us

19. Early Coordination Critical for saving time and money Three ways to be an early bird… Build relationships • Gain understanding • Share background macdc.us

20. County Drain Resources County Drain Resources www.michigan.gov/deqinlandlakes

21. Requests for Coordination • Voluntary & Free • Early discussions on planned projects • Pre-screening • Submit in January • Results in letter from DEQ macdc.us

22. Pre-Application Meetings • Through your local DEQ District office • Assists with project planning • Identifies if your proposed activities will require a permit • Conducted in office or on site • No wetland boundaries will be identified macdc.us

23. 3-Tier Permitting system Public Notice Projects Minor Projects General Permits Exempt Activities MP/GP documents are available at: www.mi.gov/wetlands macdc.us

24. County Drains General Permit Category macdc.us

25. Activities requiring individual permits • Maintenance on drains established after 1973 where no permit was obtained • Widening, deepening, straightening beyond established profiles • Extensions or adding branches • Enclosures >100’ individually or >300’ total • Relocating or other “realignments” >300’ • All other regulated activities not covered under GP or MP Categories macdc.us

26. Public Notice • All adjacent landowners are notified • Public notice period is additional 20 days • If public hearing requested, additional 60 days added to permit processing timeline macdc.us

27. Federal Review: Red File Projects • Relocation or channelization >1,000 feet of stream • New construction of >1,000 feet of breakwaters or seawalls • Affects 1 acre or more of wetland • Enclosures >300 feet of stream • Potential for affecting federal T&E macdc.us

28. Federal Review: Red File Projects • Potential for affecting waters of another state • Suspected to contain toxic pollutants or hazardous substances • In proximity to public water intake • In critical areas such as national or state parks, wildlife refuges, etc. • Sites identified by EPA in advance macdc.us

29. Part 365: Threatened and Endangered Species • Approximately 400 species listed in Michigan • Separate federal list regulated through US Fish & Wildlife Service macdc.us

30. macdc.us