A fact known among ecological/natural resource consultants, and also many of MCA’s client’s, is that there has not always been consistency between the MDEQ Water Resources Division, District Offices and/or MDEQ staff when it comes to the administration and interpretation of the Part 303, Wetlands Protection Act and Part 303 Rules.

MCA’s Ecological Services group recently worked on two large transmission line projects in the eastern portion of the Lower Peninsula.  These two projects included a host of natural resource related work, which included wetland assessments (delineations) and rare (threatened, endangered, and special concern) species habitat assessments and species surveys.  Ultimately, it was determined that an Individual Permit from the Michigan Department of Environmental Quality (MDEQ), Water Resources Division was required for wetland, floodplain and stream impacts for the proposed impacts, as well as clearances and concurrences from the U.S. Fish and Wildlife Service and the Michigan Department of Natural Resources (MDNR) Wildlife and Fisheries Divisions for rare species.

While working with the MDEQ on these two projects a couple of interesting things happened early in the permitting process and required MCA’s Ecological Services group to adjust their approach.

  • It was brought to MCA’s attention that the MDEQ Water Resource Division was now regulating “wetland use”. Our understanding after discussions with the MDEQ is that there is a new “implementation” of the wetland statute that regulates wetland use (the maintained use of wetlands).   MCA learned this was not actually a policy change, but the MDEQ Water Resources Division trying to be consistent in their administration of Section 324.30304C of Part 303,  Wetlands Protection Act and Part 303 Rules.  It seems that some of the District Offices and Water Resource Analysts have always regulated wetland use and required wetland mitigation for wetland use impacts greater than one third (0.33) of an acre; while other District Offices have not.

When inquiring about a definition of maintenance, MCA Ecological Staff was told that the MDEQ currently does not have a working definition of maintenance, but the definition of use means a change in the wetland community type or vegetation.  An example of wetland use would include the routine cutting of trees and shrubs (woody vegetation) in a forested wetland, thus converting the forested wetland into a wet meadow wetland and/or emergent wetland system.

  • The second interesting project twist included the MDEQ deciding that because these two projects — which are located in two different counties and would be reviewed by two different MDEQ Water Resources Division, District Offices — were related and ultimately part of a larger project/initiative and that the permit application should be combined and handled by only one “Lead” Analyst and District Office. Essentially, making this project a “guinea pig” for the MDEQ and the way they handle large projects that fall within geographic areas handled by one or more MDEQ Water Resources Division, District Offices.

While the new implementation of “wetland use” came as a surprise to both MCA’s Ecological Staff and the client, MCA was able to work with the client in some new and innovative ways to reduce areas of originally proposed wetland use impacts.  In addition, MCA’s Ecological Staff was able to negotiate with the MDEQ (who exercised some flexibility) with respect to the wetland mitigation ratios required in order to compensate for the “wetland use” impacts.

We are pleased to share that our client has received their “combined individual” MDEQ Wetland Permit for this project and that the handling of this project by one “Lead” Analyst and District Office worked extremely well.

So, as you think about that next project, keep in mind that there are now three different types of wetland impacts that may require mitigation for any given project – permanent, temporary, and wetland use (maintained use).   MCA would welcome an opportunity to help you understand the most recent MDEQ permitting nuances and assist you in successfully navigating your project through the permitting process.

 

Pamela Rice
Senior Project Manager – Ecological Services
Metro Consulting Associates