Planning & Zoning in Michigan>Wetlands/Natural Features Setback

Wetlands/Natural Features Setback
This information was adapted from the 'Shiawassee & Huron Headwaters Preservation Project' developed by Oakland County Planning and Carlisle Wortman & Associates.

A number of communities have adopted wetlands protection as part of their general ordinances, supplemented by natural features setback regulations in their zoning ordinance. Local Wetland Ordinances are authorized by the Wetlands Protection Section of Act 451, the Natural Resources and Environmental Protection Act of 1994. Natural features setback regulations are authorized by State zoning enabling statutes. These regulations are intended to offer increased local protection of wetlands not protected under state law, and to reduce impact upon natural features by limiting the proximity of disturbance. Below is an example of a wetland and natural feature setback ordinance modified from Independence Township in Oakland County, Michigan.

Section __________. Wetland Protection Ordinance

(a.) Purpose. It is the purpose and intent of this article, in view of the findings specified above, to promote and maintain a harmonious and compatible land use balance within (the community) and to obviate the nuisance condition which would arise with the indiscriminate development of existing wetlands and watercourse areas; to provide for the protection, preservation, proper maintenance, and use of (community) wetlands and watercourses in order to minimize disturbance of and to them; to prevent damage caused by erosion, scarification, sedimentation, turbidity, and/or siltation; to provide for the protection of soils capable of providing necessary filtration for the maintenance of aquifer stability; to protect against loss of wildlife, fish, or other beneficial aquatic organisms, or vegetation, and also against the destruction of the natural habitat thereof; to minimize the phenomenon of environmental deterioration; to secure safety from the dangers of flood and pollution, to prevent loss of life, property damage and other losses and risks associated with flood conditions; to protect individual and community riparian rights; to preserve the location, character, and extent of natural drainage courses; and to provide for the enforcement of this article and coordination of the enforcement of appropriate local, county, and state ordinances or statutes and corresponding agencies.

(b.) Validity and necessity. (The community) declares that this article is essential to the health, safety, economic, and general welfare of the people of (the community), and to the furtherance of the policy set forth in Article 4, Section 52 of the Constitution of the State of Michigan.

(c.) Construction and application.
(1) The following rules of construction apply in the interpretation and application of this article:

a. In the case of a difference of meaning or implication between the text of this article and any caption or illustration, the text shall control.

b. Particulars provided by way of illustration or enumeration shall not control general language.

c. Ambiguities, if any, shall be construed liberally in favor of the protection and preservation of natural resources.

(2) It is the intent of this article to promote flood protection, however, this article cannot be relied upon for determining where floods may occur.
(d.) Prohibitions. It shall be unlawful for any person to do or assist in any of the following unless and until a written permit is obtained from (the community) pursuant to this article:

(1) Deposit or permit to be deposited any material, including, without limitation, structures, into, within, or upon any wetland or watercourse area.

(2) Remove or permit to be removed any material from any wetland or watercourse area.

(3) Dredge, fill, or land balance bottomlands or wetlands.

(4) Enlarge, diminish, or alter a lake, stream, or any other naturally or artificially occurring waterway.

(5) Create, enlarge, or diminish any natural or artificially constructed canal, channel, ditch, lagoon, pond, lake, or other waterway for navigation or any other purpose, whether or not connected to an existing lake, stream, or watercourse.

(6) Erect, enlarge, or operate a private or public marina.

(7) Construct, place, enlarge, extend, or remove a temporary, seasonal, or permanent operation or structure upon bottomlands or wetlands.

(8) Construct, extend, enlarge, or connect any conduit, pipe, culvert, or open or closed drainage facility erected for the purpose of carrying storm water runoff from any residential site of two (2) or more single-family residences or from a multiple residence, commercial site, parking area, paved or unpaved private or public road, or any other land use permitting discharge of silt, sediment, organic or inorganic materials, chemicals, fertilizers, flammable liquids, or any substance producing turbidity, except through an interceptor, retention or settling, filter or treatment facility designed to control and eliminate the pollutant before discharged to any lake, pond, stream, or watercourse, provided the design of such facility must first be approved by (the community) or the MDEQ.

(9) Construct, enlarge, extend or connect any private or public sewage or waste treatment plant discharge to any lake, pond, stream, water or drainage course, or wetland except in accordance with the latest requirements of and permit by the (county), State of Michigan, and/or the United States, to the extent that such entities have jurisdiction.

(10) Pump surface waters for irrigation or sprinkling of private or public uses other than for individually owned single-family residences from lakes, ponds, rivers, streams, or waterways except when the waterway is wholly contained within the user's property.

(11) Drain, or cause to be drained, any water from a wetland.

(e.) Activities not requiring a permit. The following uses shall be allowed in a wetland without a permit subject to other applicable laws and ordinances and the owner's regulation:

(1) Fishing, trapping, or hunting.

(2) Swimming or boating.

(3) Hiking.

(4) Grazing of animals.

(5) Farming, horticulture, silviculture, lumbering, and ranching activities, including plowing, irrigation, irrigation ditching, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices. Wetland altered under this subsection shall not be used for a purpose other than a purpose described in this subsection without a permit from (the enforcing agency).

(6) Maintenance or operation of serviceable structures in existence on the effective date of this article or constructed pursuant to this article.

(7) Construction or maintenance of farm or stock ponds.

(8) Maintenance, operation, or improvement that includes straightening, widening, or deepening of the following, which is necessary for the production or harvesting of agricultural products:

a. An existing private agricultural drain.

b. That portion of a drain legally established pursuant to Michigan drain law which has been constructed or improved for drainage purposes.

c. A drain constructed pursuant to other provisions of applicable law and ordinance.

(9) Construction or maintenance of farm roads, forest roads, or temporary roads for moving mining or forestry equipment, if the roads are constructed and maintained in a manner to ensure that any adverse effect on the wetland will be otherwise minimized.

(10) Drainage necessary for the production and harvesting of agricultural products if the wetland is owned by a person who is engaged in commercial farming and the land is to be used for the production and harvesting of agricultural products. Except as otherwise provided in this article, wetland improved under this subsection after the effective date of this ordinance shall not be used for non-farming purposes without a permit from the (community). This subsection shall not apply to a wetland that is contiguous to a lake or stream, or to a tributary of a lake or stream, or to a wetland which the (community) has determined by clear and convincing evidence to be a wetland, which is necessary to be preserved for the public interest, in which case a permit shall be required.

(11) Maintenance or improvement of public streets, highways, or roads, within the right of-way and in such a manner as to ensure that any adverse effect on the wetland will be otherwise minimized. Maintenance or improvement does not include adding extra lanes; increasing the right-of-way; or deviating from the existing location of the street, highway, or road.

(12) Maintenance, repair, or operation of gas or oil pipelines and construction of gas or oil pipelines having a diameter of six (6) inches or less, if the pipelines are constructed, maintained, or repaired in a manner to ensure that any adverse effect on the wetland will be otherwise minimized.

(13) Maintenance, repair, or operation of electric transmission and distribution power lines and construction of distribution power lines if the distribution power lines are constructed, maintained, or repaired in a manner to ensure that any adverse effect on the wetland will be otherwise minimized.

(14) Operation or maintenance, including reconstruction of recently damaged parts, of serviceable dikes and levees in existence on the effective date of this article or constructed pursuant to this article.

(15) In cases where a permit is not required under Section 6(3) of Act 203 of the Public Acts of 1979, as amended, being MCL 281.706(3), involving activities permitted under Section 404 of Title 4 of the Clean Water Act of 1977, 33 USC, Section 1344.

(f.) Application for permit. Permits required under this article shall be issued only following the submission of an application to the (enforcing agency) as provided below, and review in accordance with this article:

(1) Application for a (community) wetland permit shall be made on the form supplied by the Michigan Department of Environmental Quality.

(2) Each person applying for a (community) wetland permit shall make application directly with the (community).

(3) Upon receipt, the (community) shall forward a copy of each application to the Michigan Department of Environmental Quality.

(4) The (community), with the assistance of its consultants in those cases deemed by the (community) to be appropriate, shall review the application pursuant to this article.

(5) The application shall be modified, approved, or denied within ninety (90) days after receipt, subject to the following provision.
(6) The applicant for an approval required in conjunction with site plan review or subdivision approval shall, at the time of submission, elect to have the application processed under either subparagraph a. or subsection b.
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