1. MACDC Intercounty 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
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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
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3. Part 31: Floodplains Drain Code Exemption
Rule 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 et seq. of the Michigan Compiled Laws (aka Drain Code).
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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
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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
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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
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7. SESC Plans Drainage board should approve SESC plan
Contractor required to follow plan
MACDC SESC Manual
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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
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9. Part 91 Violations Violation is to entire drainage board/district
Fines up to $25,000/day
Administrative Consent Orders
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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
JPA includes waters along the coasts that also fall under Section 10 ACOE authority
Includes screening for other programs: T&E, Wild & Scenic Rivers, Historic/Archaeologic sites
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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
State law details:
Permit decision timeframes
Fees
Regulatory definitions
Exemptions
Consistency not same
More permitting staff
More interaction and availability
In other states, authorizations and screenings are from separate agencies
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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
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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
OHWM video series on DEQ youtube channel
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14. Part 301: Inland Lakes & Streams
Exempt Activities:
MCL (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 )
Drains constructed prior to January 1, 1973
Does not include deepening, widening, adding branches, etc.
MUST be completed under agreement with the drainage board (landowner work not exempt) AND using BMPs (practices that minimize impacts)
Board should make a determination as to why the project is exempt and document this in the file (notes, minutes, etc)
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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.”
This means: onsite investigation of vegetation, soils, and hydrology by a wetland professional. Michigan law requires that Army Corps of Engineering Wetland Delineation manual methodology is utilized for wetland determinations.
Not all wetlands are regulated: Michigan law gives specific criteria for which wetlands are regulated. Generally, a wetland is regulated if it is larger than 5 acres in size or if it is connected to or within 500 feet of an inland lake or stream.
Pictures of floodplain wetland taken two weeks apart.
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16. Part 303: Wetland Protection
Regulated Activities in Wetland
FILL
DRAIN
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
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17. Part 303: Wetland Protection
Exempt Activities:
MCL (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
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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
Much of the first two steps deal with:
Do feasible and prudent alternatives exist?
Different location, configuration, size, or method (access, approach, equipment, etc)
Deal with first two THEN go to replacing lost resources – called Mitigation
Replace unavoidably lost wetland or stream resources with created or restored wetlands OR in-stream improvements
Ensure no net loss of functions and values.
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19. Early Coordination Critical for saving time and money
Build relationships
Gain understanding
Share background
Three ways to be an early bird…
The purpose: obtain information that may have impacts early in the planning process in order to minimize planning costs and delays.
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20. County Drain Resources
County Drain Resources
Know what you’re talking about.

21. Requests for Coordination
Voluntary & Free
Early discussions on planned projects
Pre-screening
Submit in January
Results in letter from DEQ
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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
Pre-application meetings must be requested in writing – visit the MDEQ website for the form.
Formal outcome is a determination of what permits may be required.
Informal process/conversation is where you gather information to improve the permit application, modify the project, and/or explain intent and history.
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23. 3-Tier Permitting system
Public Notice Projects
Minor Projects
General Permits
Exempt Activities
MP/GP documents are available at:
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24. County Drains General Permit Category
Specific activities receive expedited permit processing
Activities included in category: Clear span bridges, headwalls/wingwalls, riprap, 300’ road safety realignments, some in-stream structures, and culverts.
Reporting is required at the end of the year the activity was done that indicates the work complied with the category requirements.
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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
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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
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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
According to our MOA with USEPA, federal oversight of state assumed programs require that certain projects also must undergo federal review.
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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
How does this affect the permit process?
Concurrent review with MDEQ by federal agencies including USEPA, USACE, USFWS
USACE and USFWS provide any comments to USEPA
Based on compiled federal comments, USEPA may issue a letter objecting to the project
MDEQ acts as liaison and responds to federal comments
MDEQ cannot issue a permit when a federal objection stands
90 days to resolve objection under federal law
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29. Part 365: Threatened and Endangered Species
Approximately 400 species listed in Michigan
Separate federal list regulated through US Fish & Wildlife Service
State T&E law is administered by MDNR and federal T&E law administered by USFWS; however DEQ offers screening and coordination with these agencies during the JPA permit process.
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