MICHIGAN WETLAND MITIGATION AND PERMIT COMPLIANCE STUDY. FINAL REPORT December 18, 2000

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1 MICHIGAN WETLAND MITIGATION AND PERMIT COMPLIANCE STUDY FINAL REPORT Decembe 18, 2000 Pepaed By Robet P. Zbiciak Land and Wate Management Division Michigan Depatment of Envionmental Quality P.O. Box Lansing, Michigan

2 ACKNOWLEDGEMENTS The Michigan Depatment of Envionmental Quality (MDEQ) would like to acknowledge and thank the United States Envionmental Potection Agency (USEPA) fo poject funding. We would also like to thank John Pokes of Envionmental Testing and Consulting, Inc. and Loi Villa of Envionmental Consulting and Technology, Inc., fo assistance in compiling histoic infomation on mitigation pojects in Southeast Michigan. Special appeciation is extended to the Land and Wate Management Division (LWMD) field staff who compiled the histoic infomation on pojects equiing compensatoy wetland mitigation, assisted in poject selection, and paticipated in site inspections and evaluations. The autho would like to extend thanks to Dick Wolinski and student assistant Jamie Boh of the Inland Lakes and Wetlands Unit. Dick fo his editing of the epot and Jamie fo the pepaation of the Figues, Tables and Appendices. The autho would also like to extend special thanks to Amy Lounds of the Inland Lakes and Wetlands Unit fo he paticipation and assistance in all facets of this poject. 2

3 EXECUTIVE SUMMARY In 1997 the Michigan Depatment of Envionmental Quality (MDEQ) initiated a study to examine and evaluate the quality and success of wetland mitigation pojects in Michigan. The study was funded by a gant fom the U.S. Envionmental Potection Agency (EPA). The pimay goal of the study was to impove the quality of mitigation wetlands by identifying wetland designs and constuction methods that consistently esulted in the ceation of high quality wetlands. Seconday goals of the study wee to compile histoic data on mitigation pojects, and conduct a compehensive eview and evaluation of the MDEQ s wetland mitigation pogam. The study examined MDEQ s wetland pemits issued between 1987 and 1998, and included pojects fom all geogaphic egions of the state. A total of 78 pemits wee selected fo investigation duing this study. Of the pojects evaluated, 54 (70%) wee fom the southen half of the Lowe Peninsula, while 12 (15%) of the pojects wee selected fom both the nothen half of the Lowe Peninsula and the Uppe Peninsula. Pojects involving the ceation of at least one ace of eplacement wetland, established fo a minimum of two complete gowing seasons wee pefeed and selected if available. The evaluation fo each poject consisted of a detailed eview of the MDEQ pemit document, eview of the entie MDEQ file, and inspection of all mitigation sites. Each pemit document was eviewed and evaluated to detemine if all of the necessay mitigation specific conditions had been included. The file eview was used to veify whethe documents (i.e., mitigation plan, consevation easement, monitoing epots, etc.) wee submitted by the pemittee as equied. Inspections of all mitigation sites wee conducted to veify that the eplacement wetlands had been constucted as equied and to detemine whethe they had adequately eplaced the wetlands lost to the oiginal poject. A total of 159 mitigation sites wee inspected. Each mitigation poject was ated in the following thee categoies. 1) Legal ating, had the pemittee complied with all pemit conditions, 2) biological ating, had the applicant successfully ceated wetlands as equied, and 3) Oveall ating, consisting of a combination of the legal and biological atings. Each poject was also given a quality ating, a scoe fom zeo to ten that eflected the quality of the ceated wetland. A scoe of zeo was given if the mitigation was neve constucted, ten epesented the best scoe possible. The study evealed that the sophistication of MDEQ wetland pemits vaies geatly thoughout the state and that most pemits fail to contain necessay mitigation specific conditions. The study also evealed the following facts: 1) 1 of evey 7 mitigation pojects (14%) is neve constucted, 2) only 50% of mitigation sites contain the equied wetland aceage, 3) 42% of mitigation sites have excessive open wate, 4) 32 % of mitigation sites have insufficient wate, 5) 41% of mitigation sites do not contain sufficient topsoil to facilitate plant gowth, 6) only 18% of pemittees comply with all pemit conditions, 7) only 29% of pemittees ae successful in ceating the equied amounts of wetlands, and 8) only 22% of the pojects wee detemined to be oveall 3

4 successful. These statistics eveal that the MDEQ s wetland mitigation pogam is not successful in obtaining adequate eplacement wetlands. The study also evealed that MDEQ staff is unable to conduct adequate follow-up on mitigation pojects afte pemit issuance. Only 20 out of the 77 mitigation pojects evaluated, (26%) eceived any type of follow-up fom MDEQ staff afte the pemit was issued. Of the 20 pojects eceiving follow-up action, 13 pojects eceived outine follow-up while 6 eceived action due to a complaint. Fiftyseven of the 77 pojects studied (74%), eceived no follow-up action of any kind afte pemit issuance. Many factos have contibuted to the oveall poo quality of the MDEQ s wetland mitigation pogam. The histoic lack of accuate ecod keeping o data on mitigation pojects has pevented the MDEQ fom knowing the scope of the poblem. The MDEQ s pefeence fo equiing on-site mitigation has lead to many mitigation pojects being constucted in locations not suitable fo wetland ceation. The MDEQ s outine pactice of issuing wetland pemits pio to having a complete mitigation plan, consevation easement, o othe petinent infomation has esulted in lage numbes of pemit violations and poo quality wetlands. Pooly witten o incomplete pemits and a lack of enfocement staff have made enfocement difficult. Heavy pemit wokloads pevent MDEQ staff fom outinely monitoing most mitigation pojects and equiing the coections o modifications needed to impove the quality of mitigation wetlands. This lack of follow up has been a significant facto in the poo quality of mitigation wetlands in Michigan. To impove the MDEQ s wetland mitigation pogam, the MDEQ should develop and implement a mitigation tacking system. All pemitting staff should be diected to use the system and to ente mitigation elated data at the time of pemit issuance. This system should be designed to notify staff when monitoing epots ae due and when site inspections ae necessay. The MDEQ should equie that mitigation wetlands be located in aeas whee they ae moe likely to be successfully ceated and to be biologically beneficial. This would encouage and esult in moe off-site mitigation. The MDEQ should update thei standad mitigation pemit conditions and equie pemitting staff to include these conditions on all wetland pemits equiing mitigation. MDEQ staff should withhold the issuance of a wetland pemit until such time that they have eceived, eviewed, and appoved all necessay mitigation elated infomation, including a complete mitigation plan, consevation easement, and financial assuances. Staff of the MDEQ must conduct outine and timely inspections of mitigation pojects and equie coections o modifications as needed. Staff of the MDEQ must also take timely enfocement actions against pemittees that fail to constuct the equied mitigation o comply with pemit conditions. To impove the quality of mitigation wetlands, the MDEQ should encouage and equie, wheneve possible, the estoation of histoically lost wetlands instead of allowing the ceation of wetlands fom upland aeas whee they ae less likely to succeed. The MDEQ should also conside allowing applicants the option of ceating emegent wetlands (at a highe atio) as compensation fo scub-shub and foested wetlands. The MDEQ should equie pio to pemit issuance, that sufficient hydological infomation be povided that clealy demonstates that a poposed mitigation site can be 4

5 conveted into the desied wetland type. The MDEQ should equie that all mitigation pojects incopoate a stop-log o simila wate contol stuctue so that wate levels can be easily adjusted if necessay. The MDEQ should also establish compliance and enfocement staff positions within the LWMD in ode to insue that pemittees povide the equied eplacement wetlands. In addition to the above-efeenced ecommendations, the MDEQ should stongly encouage and pomote wetland mitigation banking. Wetland mitigation banking is desiable because the mitigation wetlands ae constucted, monitoed, and cetified pio to being available fo use by the pemit applicants. 5

6 TABLE OF CONTENTS ACKNOWLEDGEMENTS... 2 EXECUTIVE SUMMARY... 3 TABLE OF CONTENTS... 6 LIST OF TABLES AND FIGURES... 9 LIST OF APPENDICES...11 I. INTRODUCTION...12 PAGE NO. A. Pupose...12 B. Backgound...12 C. Scope of Study...14 D. New Mitigation Rules...18 II. METHODS...20 A. Compilation of Mitigation Data...20 B. Geogaphic Citeia fo Poject Selection...21 C. Size Citeia fo Poject Selection...21 D. Age Citeia fo Poject Selection...22 E. Methodology fo Poject Selection...22 F. Final Poject Selection...22 G. File Review...23 H. Evaluation Pocedues...23 I. Mitigation Poject Review Repot (MPRR) Legal Requiements Physical and Biological Factos Peliminay Ratings...25 J. Mitigation Site Review Summay Fom...26 K. Site Inspection...26 L. Final File Review and Data Tabulation...27 III. RESULTS...28 A. Geneal Infomation Poject Type Counties Aceage of Impact Mitigation Ratios

7 5. Mitigation Aceage Requied On-site vs Off-Site Mitigation Age of Mitigation Pojects...34 B. Pemit Composition and Compliance...34 C. Physical and Biological Chaacteistics of the Constucted Wetlands Numbe of Sites Numbe of Constucted Sites Requied Wetland Aceage Excessive Open Wate Insufficient Hydology Soils Eosion Wate Claity Invasive Species...40 D. Final Ratings Estimated Loss of Wetlands Legal Rating Biological Rating Oveall Rating Quality Rating...45 E. MDEQ Ovesight and Follow-up Follow-up Inspections Reasons fo Follow-up Inspection...47 IV. DISCUSSION...49 A. Mitigation Ratios...49 B. On-Site vs Off-Site Mitigation...49 C. Pemit Issuance (Timing vs Content) Timing Pemit Content...51 a) Requied Mitigation Pemit Conditions...52 b) Altenative Mitigation Pemit Conditions...54 D. Mitigation Plan...55 E. Pefomance Standads...56 F. Monitoing Plan...58 G. Financial Assuances...61 H. Physical and Biological Chaacteistics of the Constucted Wetlands Hydology Soils Vegetation Eosion Poblems Poo Wate Claity Invasive Species

8 7. Wetland Types...64 I. Pogammatic Issues...66 V. CONCLUSIONS AND RECOMMENDATIONS...68 A. New Mitigation Rules...68 B. On-Site vs Off-Site Mitigation...68 C. Pemit Issuance...68 D. Pemit Composition...69 E. Mitigation Plan...69 F. Pefomance Standads...70 G. Monitoing Plan...70 H. Financial Assuances...70 I. Wetland Restoation...71 J. Out of Kind Replacement...71 K. Wate Depths and Open Wate...72 L. Wate Quality Teatment...73 M. Wate Contol Stuctues...73 N. 90 Day Statutoy Deadline...73 O. Mitigation Data Enty...74 P. Location of Mitigation Files...74 Q. Follow-up Inspections...74 R. Altenative Follow-up Methods...75 S. Mitigation Cetification Pocess...75 T. Enfocement Actions...76 U. Wetland Mitigation Banking

9 LIST OF TABLES AND FIGURES TABLE PAGE Table 1. Possible esults...26 Table 2. Table 3. Mitigation site eview summay fom...29 Numbe of pojects evaluated pe county...30 FIGURE PAGE Figue 1. Geogaphic location of the mitigation pojects...15 Figue 2. Figue 3. Figue 4. Figue 5. Numbe of pojects eviewed fom each distict...16 Numbe of selected pojects fom each yea investigated...18 Numbe of known mitigation pojects by egion of state...21 Poject types...28 Figue 6. Aceage of wetland impacts...31 Figue 7. Mitigation atios...32 Figue 8. Size of mitigation pojects...33 Figue 9. Sitting of mitigation...33 Figue 10. Age of mitigation pojects...34 Figue 11. Use of mitigation specific pemit conditions...37 Figue 12. Compliance with mitigation pemit conditions...38 Figue 13. Physical chaacteistics of the constucted wetlands...41 Figue 14. Legal atings...43 Figue 15. Biological atings

10 Figue 16. Oveall atings (combination of legal and biological atings)...44 Figue 17. Quality atings...46 Figue 18. Compliance inspections pefomed...48 Figue 19. Reasons fo compliance inspections

11 LIST OF APPENDICES Appendix A New mitigation ules effective Apil 27, 2000 Appendix B List of all known mitigation pojects fom Appendix C List of all known mitigation pojects fom Appendix D Appendix E Appendix F Appendix G Appendix H Appendix I Appendix J Appendix K Appendix L Mitigation poject eview epot (MPRR) Mitigation site eview summay fom Mitigation study poject data (floppy disc) Mitigation site eview fom and photogaphs fo each poject Mitigation elated pemit conditions Model mitigation plan Model Pefomance standads Model mitigation monitoing plan Memo to MDEQ staff egading enteing mitigation data into CIWPIS 11

12 I. INTRODUCTION A. Pupose This study was developed by the Land and Wate Management Division (LWMD) of the Michigan Depatment of Envionmental Quality (MDEQ) unde a gant fom the U.S. Envionmental Potection Agency (USEPA). The pimay pupose fo this study was to evaluate wetland mitigation pojects authoized by the MDEQ in ode to identify wetland designs and constuction methods that consistently esulted in the ceation of high quality functioning mitigation wetlands. The pimay goal of this study was to impove the quality of mitigation wetlands constucted as pat of the MDEQ s wetland egulatoy pogam. Seconday goals wee to compile as much histoic infomation on past mitigation pojects as easonably possible, to establish and implement a mitigation tacking system, and to conduct a compehensive eview and evaluation of the MDEQ s wetland mitigation pogam. B. Backgound Pat 303, Wetlands Potection, of the Natual Resouces and Envionmental Potection Act, 1994 PA 451, as amended (fomally the Goemaee Andeson Wetland Potection Act 1979 PA 203) states the following in section 30304: Except as othewise povided by this pat o by a pemit obtained fom the MDEQ, a peson shall not do any of the following: (a) Deposit o pemit the placing of fill mateial in a wetland. (b) Dedge, emove, o pemit the emoval of soil o mineals fom a wetland. (c) Constuct, opeate, o maintain any use o development in a wetland. (d) Dain suface wate fom a wetland. The MDEQ administes Michigan s wetland egulatoy pogam. The state of Michigan assumed the egulatoy esponsibilities fo Section 404 of the Clean Wate Act (CWA) fom the USEPA in Michigan is one of only two states to have assumed the Section 404 pogam. In accodance with the assumption ageement the USEPA etains veto authoity ove lage pojects that involve a minimum dischage of 10,000 cubic yads of fill within a egulated wetland. The U.S. Amy Cops of Enginees (USACE) etains equal juisdiction ove wetlands adjacent to the Geat Lakes and majo navigable ives. In these aeas, an applicant must obtain both a MDEQ and USACE pemit befoe conducting a egulated activity. Section 30312(2) states the depatment may impose conditions on a pemit fo a use o development if the conditions ae designed to emove an impaiment to the wetland benefits, to mitigate the impact of a dischage of fill mateial, o to othewise impove wate quality. Mitigating the impact of a dischage of fill mateial geneally equies the ceation of a eplacement wetland. The eplacement wetland must usually be lage than the lost wetland, of the same biological type, and designed to eplace the functions being lost. When mitigation fo wetland impacts involves ceating 12

13 eplacement habitat, it is known as compensatoy wetland mitigation. Fo puposes of this epot, the tem mitigation efes to compensatoy wetland mitigation. Wetland mitigation as pacticed in Michigan, geneally means ceating a eplacement wetland in an upland aea that is not, and histoically has neve been wetlands. Wetland estoation geneally means estoing hydology and wetland vegetation to histoic wetlands that have been dained, usually fo agicultue. Wetland estoation has been used as mitigation only in situations whee the impacts to the histoic wetland wee so extensive that the aea no longe could be legally defined as wetland. Wetland enhancement typically involves alteing an existing wetlands hydology o plant community (usually by adding wate). Wetland enhancement does not qualify as mitigation in Michigan. Pesevation of existing wetlands though the use of consevation easements, o donations of wetland popety to the State of Michigan do not qualify as mitigation. Howeve, while enhancement and pesevation ae not consideed to be suitable mitigation on thei own, they ae often a component of a final mitigation plan. Applicants and MDEQ egulatoy staff have had limited options in the siting of mitigation pojects. R Rule 5(5) states in pat: If the depatment detemines that it is pactical to eplace the wetland esouce values that will be unavoidably impacted, the depatment shall conside all of the following citeia when eviewing an applicant s mitigation poposal: (a) Mitigation shall be povided on-site whee pactical and beneficial to the wetland esouces. (b) When subdivision (a) of this subule does not apply, mitigation shall be povided in the immediate vicinity of the pemitted activity whee pactical and beneficial to the wetland esouces. When possible, this means within the same wateshed and municipality as the location of the poposed poject. (c) Only when it has been detemined that subdivisions (a) and (b) of this subule ae inappopiate and impactical shall mitigation be consideed elsewhee. Due to the equiement of Rule 5(a), the MDEQ has nomally equied wetland mitigation on the site whee the loss occued. In those cases whee it was not pactical and beneficial, Rule 5(b) s estiction to the same wateshed and municipality often offes limited additional quality oppotunities fo wetland mitigation. Rule 5 has facilitated the pactice of siting mitigation wetlands wheeve thee wee available uplands on the poject site (i.e. aeas not being poposed fo development). Rule 5 has also seveely limited the oppotunities to incopoate wetland estoation concepts to addess mitigation equiements. Thee ae two types of pemits issued unde Pat 303. Fist, Geneal Pemits (GPs) ae issued fo pojects expected to have only mino impacts on wetlands. These pojects ae eviewed though an expedited pemit application pocess. 13

14 These pojects ae not public noticed and the MDEQ is pohibited fom equiing wetland mitigation (See R Rule 5[9]). Second, Individual Pemits (IPs) ae issued fo pojects whose wetland impacts ae lage and moe complex than GPs. These pojects must be public noticed and may also involve a public heaing. Wetland mitigation is geneally equied fo impacts authoized by IPs. Since the MDEQ is pohibited fom equiing wetland mitigation fo losses associated with GP pojects, all pojects investigated and evaluated duing this study wee IPs. C. Scope of Study While this study oiginally had one pimay pupose, that being to identify wetland designs and constuction methods that consistently esulted in the ceation of high quality functioning wetlands, ultimately a compehensive eview and evaluation of the MDEQ s wetland mitigation pogam was conducted. Geneal infomation such as size of the wetland impacts, mitigation atio, and whethe the mitigation was constucted on-site o off-site was ecoded fo each poject. Each pemit document was eviewed to detemine which specific mitigation conditions they contained. Each individual mitigation site was inspected and evaluated. Each poject was ated fom a legal, biological, and oveall pespective. Finally, infomation was collected and compiled egading MDEQ s follow-up evaluation of each mitigation poject. This study examined 78 individual pemits and thei associated 159 mitigation sites. Pojects fom all aeas of the state wee evaluated. Fifty-fou (70%) of the pojects evaluated wee located in the southen half of the lowe peninsula while twelve (15%) pojects wee located in both the nothen half of the lowe peninsula and the uppe peninsula. The geogaphic location of the pojects is shown in Figue 1. Except fo the westen half of the uppe peninsula whee disticts 1, 2, and 3 wee combined, a minimum of fou pojects wee evaluated fo each MDEQ distict. (See Figue 2.) 14

15 Keweenaw Houghton 1 Ontonagon Gogebic Baaga Cystal Falls Ion #Y Maquette Dickinson Maquette # 3 Alge Delta Alge Schoolcaft Newbey Luce #Y 4 Chippewa Mackinac N Menominee = Mitigation Poject 2 Beien Benzie Leelanau Gand Tavese Mason Lake Osceola Emmet Chalevoix Antim Cheboygan Pesque Isle Otsego Mo ntmoenc y Alpena # Kalkaska Cawfod Oscoda Alcona Cadillac Manistee Wexfod #Y Missaukee Roscommon Ogemaw Iosco Aenac 6 Oceana Newaygo Muskegon Gand #Y Rapids Ottawa Kent Ionia Allegan Van Buen Kalamazoo 12 9 Plainwell # Cass St. Joseph Bay Clae Montcalm Calhoun Banch Eaton 5 Gaylod #Y 7 Gladwin Bay Mecosta Isabella Midland Gatiot Clinton Ingham Livingston Jackson 13 Mio 8 #Y Saginaw 11 Genesee Shiawassee #Y Jackson Hillsdale Lenawee Tuscola Washtenaw Wayne Huon Sanilac Saint Clai Macomb # Oakland Monoe Bay City Lapee 10 Figue 1: Mitigation Poject Location Map Note: The Distict alignment shown was in effect duing the study peiod ( ). Distict boundaies shown ae no longe in effect 15

16 14 (17%) (14%) (14%) (14%) Numbe of pojects (78) (9%) 7 (7%) 5 (5%) (5%) (5%) (5%) (5%) Disticts 1,2,3 Distict 4 Distict 5 Distict 6 Distict 7 Distict 8 Distict 9 Distict 10 Distict 11 Distict 12 Distict 13 Numbe of pojects pe distict Figue 2: Numbe of pojects eviewed fom each distict 16

17 In the fall of 1997, 24 MDEQ files wee eviewed, the pemits evaluated, and thei associated mitigation sites inspected. In the summe of 1999, an additional 54 pemits and thei associated mitigation sites wee eviewed and inspected. The 78 pemits evaluated wee applied fo between 1987 and An attempt was made to evaluate a coss-section of mitigation pojects spanning the ealiest yeas of Michigan s pogam to the pesent. The concept of mitigation and the pactice of equiing eplacement wetlands as pemit conditions, did not become common pactice until the late 1980s. In subsequent yeas, as Michigan s economy pospeed and the volume of pemit applications to impact wetlands soaed, mitigation became a common component of wetland pemit conditions. It is geneally accepted that evaluation of constucted wetlands should not occu until afte the passage of two o thee complete gowing seasons. This allows sufficient time fo the establishment of wetland hydology and hydophytic vegetation. Fo this eason, vey few pojects applied fo afte 1996 wee evaluated. Of the 78 pojects evaluated, 15 (19%) wee applied fo between 1987 and 1991, 57 (73%) wee applied fo between 1992 and 1996, and 6 (8%) wee applied fo in 1997 and 1998 (See Figue 3). 17

18 Numbe of pojects (78) (8%) (8%) (8%) Pio (4%) 3 6 (12%) 9 12 (23%) (15%) (15%) Yea in which application was submitted 12 (5%) 4 (2%) 2 Figue 3: Numbe of selected pojects fom each yea investigated D. New Mitigation Rules Duing the study peiod MDEQ staff have been woking to pomulgate new administative ules egading wetland mitigation. Phase I of these ules became effective on Apil 27, The new mitigation ules addess some of the poblem aeas identified duing this study. The new mitigation ules povide the MDEQ egulatoy staff with guidance that will lead to moe consistent administation of Pat 303 mitigation issues. Highlights of the new mitigation ules include the following: 1) The MDEQ shall equie wetland mitigation fo impacts of one-thid ace o lage (unless the poject qualifies as a geneal pemit). 2) Acceptable methods of mitigation include: a) Restoation of peviously existing wetlands. b) Ceation of new wetlands. c) Acquisition of appoved cedits fom a wetland mitigation bank. d) Pesevation of existing wetlands (in limited cicumstances). 18

19 3) Restoation of peviously existing wetlands is the pefeed method. 4) Enhancement of existing wetlands is not consideed mitigation. 5) Identification of the specific elements that must be included in an acceptable mitigation plan. 6) Identifies when on-site mitigation should be equied and povides guidance on siting mitigation when on-site mitigation is not pactical and beneficial. 7) Requies that mitigation be of a simila ecological type as the impacted wetland whee feasible and pactical. 8) Sets mitigation atios when the eplacement wetland is of a simila ecological type and allows fo inceasing the atios when the eplacement wetland is of a diffeent type. 9) Requies that the pemittee complete the mitigation befoe initiating the pemitted activities unless a concuent schedule is ageed upon between the MDEQ and the pemittee and an adequate financial assuance mechanism is povided by the applicant. 10) Requies that the pemittee potect the mitigation aea by a pemanent consevation easement o simila instument that povides fo the pemanent potection of the natual esouce functions and values of the mitigation site. The most significant poblem with the new ules is that they place consideable additional budens and esponsibilities on an aleady ove woked pemitting staff. The new ules mandate that pemitting staff equie wetland mitigation fo moe pojects than in the past. Staff must now develop citeia fo poject specific pefomance standads to be included on evey pemit. Staff must also now obtain consevation easements and financial assuances fo all mitigation pojects in addition to obtaining and evaluating moe detailed infomation egading the design and physical constuction of the wetland. Realistically, staff will now be equied to spend consideably moe time eviewing each pemit application in which wetland impacts can be authoized. The MDEQ must ecognize and addess the fact that simply establishing new and impoved mitigation ules will not esult in significant pogam impovement. Given the cuent heavy wokloads, with the emphasis on issuing pemits as expeditiously as possible, mitigation impovements will be minimal at best. Pemitting staff simply does not have the luxuy of spending the amount of time needed to comply with the new mitigation ules. The pomulgation of new ules is a significant step in impoving MDEQ s wetland mitigation pogam. The MDEQ must now follow that up by allocating the staff needed to implement them. Without staff to adequately implement the new ules, 19

20 the mitigation pogam will look bette on pape but in eality will not esult in substantive impovements. The new mitigation ules ae attached as Appendix A. II. METHODS A. Compilation of Mitigation Data At the time this study was initiated, thee was no centalized system in place to ecod mitigation data o tack pemits that equied mitigation. Each of the LWMD's 13 Distict offices eithe kept thei own ecods, o kept no ecods at all. In most offices the ecods wee sketchy, incomplete o non-existent. The fist majo obstacle to ovecome befoe the study could begin was to constuct o econstuct the mitigation equiement data fo each of the 13 Distict offices. In ealy 1997, a equest was made to each LWMD distict supeviso to compile a list of all pemits issued that equied mitigation between Octobe 1980 though Decembe 31, Staff was asked to eview any and all infomation souces at thei disposal. Suggested souces included pesonal memoy o employee jounals, distict mitigation log (if one existed), CIWPIS 1 compute lists, pemit documents still existing within the CIWPIS system, miscellaneous mitigation monitoing epots, and thei annual 404 epots 2. The distict supevisos wee asked to pepae a list of all pemits found to have equied mitigation. Fo each pemit the following infomation was equested: 1. file numbe 2. pemittee s name 3. county 4. aceage of wetland lost 5. aceage of mitigation equied 6. location of the file and monitoing epots (if they existed) Distict staff was able to povide data on 571 pemits that had equied wetland mitigation (See Appendix B). Howeve, due to a lack of centalized ecod keeping and consideable staff tunove ove this 16-yea peiod, the infomation povided by the disticts should not be consideed totally complete o entiely accuate. Even the infomation povided on known mitigation pojects was incomplete on many pojects due to the fact that files ae maintained by the distict offices fo only thee yeas. Afte that time, they ae sent to a stoage facility in Lansing (i.e., ecods cente). The 571 pemits identified by staff most likely significantly unde estimate the total numbe of pemits issued that equied mitigation. Compiling 1 Coastal and Inland Wates Pemit Infomation System is the LWMD s compute pemit application database epot is an annual epot submitted to USEPA documenting all fills geate than 1 ace in size. 20

21 moe accuate data would be extemely difficult and time consuming. This maste list of mitigation pemits was updated though 1998 and is povided as Appendix C. B. Geogaphic Citeia fo Poject Selection Any compehensive eview of the MDEQ s wetland mitigation pogam must include pojects fom all aeas of the state. Evaluation of the aw mitigation data evealed that appoximately 75% of all mitigation pojects wee located in the southen half of the Lowe Peninsula, while 11% wee fom the nothen half of the Lowe Peninsula, and 14% fom the Uppe Peninsula (See Figue 4). The study design, samples the total wetland mitigation sites in appoximate popotion to thei distibution statewide. (75%) Numbe of pojects (571) (14%) 80 Uppe Peninsula (11%) Figue 4: Numbe of known mitigation pojects by egion of state 63 Nothen Lowe Peninsula Region 428 Southen Lowe Peninsula C. Size Citeia fo Poject Selection The size of mitigation pojects in Michigan vaies geatly. Michigan s wetland statute does not set a minimum amount of wetland loss that equies mitigation. MDEQ s field staff make judgement calls as to whethe mitigation is equied on a case by case basis. Howeve, wetland impacts of 0.25 aces o lage would geneally equie mitigation. Thee ae also numeous lage pojects that equied extensive wetlands mitigation. The lagest single mitigation poject undetaken to date was fo expansion of Detoit s Metopolitan Aipot. Appoximately 343 aces of wetland has been ceated and may be expanded to 467 aces in the futue. 21

22 In ode to utilize esouces as efficiently as possible, it was necessay to set minimum and maximum size limits on the pojects to be evaluated. Afte eviewing the mitigation equiement data, it was decided to set a minimum size equiement of one ace and a maximum size of 40 aces. While these guidelines wee not stictly adheed to, evey effot was made to eview only those pojects meeting these citeia. These guidelines wee deviated fom only when it was not possible to obtain the minimum numbe of fou pojects pe distict meeting the size citeia. D. Age Citeia fo Poject Selection Thee also needed to be some minimum age equiement fo pojects selected fo evaluation. In othe wods, the mitigation wetlands evaluated should have been constucted long enough ago that they had a easonable peiod to develop. Based upon pevious field expeience, development of the plant community in mitigation wetlands geneally equies a minimum of two complete gowing seasons to develop to the point whee evaluation is meaningful. While this minimum age citeion was not stictly adheed to, evey effot was made to evaluate only those pojects meeting it. This citeion was deviated fom only when it was not possible to obtain the minimum numbe of fou pojects pe distict meeting the age citeia. E. Methods Used fo Poject Selection Each distict supeviso, in consultation with thei staff, was equested to submit a list of between 10 and 15 pojects that met the size and age citeia. They wee equested to povide equal numbes of known successful pojects, unsuccessful pojects, and pojects whee no infomation was available. If any office was unable to povide a complete list, the autho andomly selected mitigation pojects meeting, the size and age citeia fo that distict. F. Final Poject Selection Afte eview of the infomation povided by the distict offices, any pojects not meeting the size o age citeia wee eliminated fom consideation and eplaced by andomly selected pojects. Lists not containing at least ten mitigation pojects wee supplemented with andomly selected pojects. Afte the lists wee completed, each oiginal MDEQ file was ecalled fom the appopiate distict office o fom the ecods cente in Lansing fo an initial eview. Many of these pojects wee eliminated fom futhe consideation fo the following easons: 1) the oiginal file could not be located, 2) the pemit had been extended past its oiginal expiation date, making it unlikely that the mitigation would have been undetaken, and 3) the poject did not equie mitigation and was listed in eo. Additional pojects wee andomly selected and added as necessay. In a few instances, pojects falling outside the size o age citeia wee used in ode to adequately epesent a distict when the candidate list was exhausted. 22

23 G. File Review Once a poject was accepted fo the study, a complete detailed eview of the file was conducted to compile specific infomation. All petinent documents wee copied and a mitigation file was ceated. The amount of infomation available in each file vaied. H. Evaluation Pocedues Pio to inspecting the individual mitigation pojects, standad pocedues fo conducting the inspections and selecting specific citeia to be evaluated wee developed. A standad evaluation fom to be completed duing the on-site inspection was detemined to be the most appopiate method fo achieving accuate and eliable data collection. The Mitigation Poject Review Repot (MPRR) fom was designed in such a manne that it would equie the evaluato to examine infomation fom the pemit file in addition to ecoding obsevations and compiling biological infomation while on the mitigation site. At the conclusion of the evaluation, this fom would aid the evaluato to objectively answe two basic questions: 1) did the mitigation poject comply with all pemit conditions, and 2) was the mitigation poject successful? Most pemits equiing wetland mitigation contain specialized conditions specific to the ceated wetland. In many cases the pemit also efeenced mitigation plans that specified what was to be constucted. Questions egading compliance wee tailoed to these standad mitigation pemit conditions. Detemining whethe a mitigation poject was successful is moe difficult. Exactly what constitutes a success? Ideally, each pemit document, o the appoved mitigation plan, would include specifications o pefomance citeia fo making this detemination. Unfotunately, most pemits do not contain such language. In most cases, an appoximate aceage figue of a genealized wetland type to be ceated was usually the only mitigation equiement (e.g., ceate two aces of emegent wetland ). The evaluation fom, theefoe, needed to be developed to evaluate whethe a wetland had been ceated (i.e., does the aea contain a pedominance of hydophytic vegetation, wetland hydology, and acceptable soils). If documentation could be obtained that the mitigation aea met the wetland paametes fo vegetation and hydology, it could peliminaily be consideed successful (i.e., a wetland had been ceated). Howeve, pemit specific citeia such as wetland type and equied size would be consideed pio to making the final detemination. In othe wods, if the wetland type and size equiements wee not fully met, the wetland mitigation may not be consideed successful. I. Mitigation Poject Review Repot (MPRR) 23

24 The MPRR contains thee basic sections, Legal Requiements, Physical and Biological Factos, and Peliminay Ratings (See Appendix D). 1) Legal Requiements This section equies the eviewe to addess whethe constuction of the mitigation aea was completed in accodance with the pemit equiements. Howeve, pio to evaluation of the mitigation aea, the eviewe must fist detemine whethe the pemitted activity was conducted. [If the pemitted wetland impacts wee not initiated, the offsetting mitigation is not equied]. Once it had been detemined that the pemitted activities wee in fact completed, on-site evaluation of the mitigation wetland would follow. The legal equiements section contains a combination of questions equiing the eviewe to compae the physical chaacteistics of the mitigation aea to the pemit equiements. Questions addess the numbe of mitigation sites equied, the size and shape of the mitigation aea, wate depths, pesence of topsoil, pesence of wildlife habitat stuctues, and evidence of eosion poblems. This section also contains questions equiing examination of the pemit file to detemine whethe equied documents such as as built plans, annual monitoing epots, and consevation easements and financial assuances (e.g., pefomance bonds o lettes of cedit) wee submitted. This section also addesses whethe any activities ae occuing within the mitigation aea that ae in violation of Pat 303 o the pemit. 2) Physical and Biological Factos The physical and biological factos section of the MPRR equies the eviewe to examine the mitigation aea s hydology, soils, vegetation, and wildlife usage. The hydology questions equie the eviewe to evaluate whethe the mitigation aea contains wate at a fequency and duation sufficient to suppot wetland vegetation o aquatic life. Visual estimates ae made fo the pecentage of the mitigation aea containing standing wate, satuated soil, o evidence of seasonal flooding o satuation. The soils questions addess the type of soils to be placed (i.e., oganic, hydic topsoil, upland topsoil) within the mitigation aea, its equied depth, and whethe the soils pesent ae poviding a high quality gowing medium. Examination of the top laye of soil with a pobe o shovel is equied. Visual estimates of the soil quality ae made by noting the density of the vegetative cove and whethe thee ae significant aeas that ae devoid of vegetation. The vegetation questions elate to the majo cove types within the mitigation aea and the listing of the dominant species found within each type. Visual estimates fo pecent cove and the indicato status fo each plant species ae ecoded. Othe issues investigated include whethe noxious species ae a poblem, the pecentage of the mitigation aea containing a pedominance of hydophytic 24

25 vegetation, and the pecentage of each wetland type found within the mitigation aea. The wildlife questions addess the types of wildlife habitat stuctues obseved within the mitigation aea and any evidence of wildlife use. Visual obsevations ae the pimay data collection method used. Both diect (actual obsevation of an animal) and indiect (obsevation of tacks, buows, scat, etc.) evidence ae documented. Auditoy evidence such as bid songs and amphibian calls ae also noted. The pesence of wetland dependent animals such as amphibians, tutles, and watefowl is especially significant. 3) Peliminay Ratings Completion of the peliminay atings section of the MPRR povides a summay of the Legal Requiements and Biological Factos sections. Each poject will eceive an in compliance o noncompliance ating fo the Legal section and a successful o failue ating fo the Biological section. The eviewe then will povide an oveall ating of successful o failue and ate the poject quality on a scale of zeo to ten. These peliminay (o field atings) ae the final atings unless new infomation waants a change. The legal ating is staightfowad. If the mitigation poject has complied with all pemit conditions, it will eceive a in compliance ating. If pemit conditions wee ignoed o the mitigation was not constucted as equied, it will eceive a noncompliance ating. The biological ating is not as staightfowad because specific citeia defining success does not exist in the vast majoity of pemits. To detemine if a biologically successful mitigation poject exists, the basic citeia needed to constitute a wetland must be pesent. In the simplest sense, if the mitigation aea meets the definition of a wetland as defined in Pat 303, and is the equied size, it was detemined to be successful. While some pemits equied that a specific wetland type be ceated, this study concentated moe on whethe a wetland was ceated, as opposed to whethe the equied type of wetland was ceated. If the mitigation aea did not contain the amount of wetland equied in the pemit, it eceived a failue ating. The citeia in Pat 303, R , Wetland Deteminations, was used to detemine if a mitigation aea meets the definition of a wetland. The pedominance of wetland vegetation and visible evidence that the nomal seasonal fequency and duation of wate is above, at, o nea the suface was the citeia used. Whee thee was a pedominance of wetland vegetation, and no diect visible evidence that wate is, o has been, at o above the suface, the soil pofile was examined fo evidence of hydology. The pesence o absence of wetland dependent wildlife was also consideed in cases whee the soil chaacteistics wee inconclusive. The oveall ating fo each poject was detemined by examining the atings fo both the legal and biological categoies. If the atings in these categoies wee 25

26 both negative (i.e., noncompliance and failue), the oveall ating was failue. If the atings fo both categoies wee positive (i.e., in compliance and successful), the oveall ating was successful. If the ating fo the legal categoy was noncompliance but the biological ating was successful, the oveall ating was detemined by using best pofessional judgement. If the ating fo the legal categoy was in compliance, but the biological ating was failue, the oveall ating was failue. (See Table 1). TABLE 1: Examples of Peliminay Ratings Pemit No. Legal Rating Biological Rating Oveall Rating Quality Rating In compliance Successful Successful Non-compliance Failue Failue Non-compliance Successful Eithe Successful 6 O Failue In compliance Failue Failue 3 The quality of the constucted wetlands wee ated using the best pofessional judgement of the eviewe. Pojects wee ated between zeo and ten. Zeo being not constucted and ten being extemely high quality. While this method is somewhat abitay, it was used in a vey geneal sense to categoize pojects. J. Mitigation Site Review Summay Fom The Mitigation Site Review Summay Fom (See Appendix E) was developed fo use duing the data compilation stage of the study. The Mitigation Site Review Summay Fom is compised of six sections. In the fist section, geneal infomation fom the poject file egading poject type, aceage of wetland impacts, mitigation atio, and whethe the mitigation was to be constucted on- o off- site is gatheed. The second section involves a detemination of which mitigation specific pemit conditions wee used and whethe they wee complied with. The thid section deals with the physical chaacteistics of the ceated wetland. The foth section lists the atings given to the mitigation poject fom the MPRR. The fifth section indicates whethe MDEQ staff eve followed-up on the mitigation poject, and if so, the eason fo the follow-up. The final section of the fom allows fo a bief comment and is optional. The findings of the study will be based upon the categoies of infomation contained in the Mitigation Site Review Summay Fom. K. Site Inspection 26

27 Afte completion of the in-office eview, an on-site inspection was conducted to evaluate the mitigation site(s). Fo the puposes of this study, a site consists of an individual wetland mitigation basin o aea. Many pojects had multiple mitigation sites. Site inspections wee conducted fom August though Octobe of 1997 and between June and Septembe of In 1997, 24 pojects wee evaluated and 54 in All 78 mitigation pojects and the associated 159 mitigation sites wee inspected by the autho. The LWMD field staff fom distict offices paticipated in appoximately one-thid of these inspections. Fo puposes of consistency, all data collection and atings wee pefomed by the autho. Site inspections consisted of thee steps. Step 1) Upon aival at the mitigation site, a complete eview of the mitigation file was conducted. Special attention was given to pemit conditions efeencing mitigation equiements. All mitigation conditions wee then highlighted fo futue efeence and all mitigation epots and plans wee eviewed. The most ecent mitigation monitoing epot was ead (if one had been submitted). The geneal infomation questions (Items 1-17) and the legal equiements section (Items 18-29) of the MPRR wee completed to the extent possible. Step 2) The actual mitigation wetland(s) wee then inspected. Geneally, a cusoy walk aound the peimete of the wetland was conducted to become familia with the site. Photogaphs and notes wee taken to document geneal obsevations. Specific sections of the wetland wee identified fo moe detailed evaluation. Access was possible to all but the deepest wate aeas of the mitigation aeas. Infomation was collected on the vegetative communities, soils, and hydological conditions. The Physical and Biological Factos section of the MPRR (Items 30-61) wee completed duing this step. Step 3) Afte completing the inspection, but pio to leaving the site, the Peliminay Ratings section of the MPRR (Items 62-65) and any othe items not addessed ealie wee completed. The Mitigation Site Review Summay Fom was then completed pio to leaving the site. As the field investigations wee completed, the photogaphs fo each poject wee developed, documented, and placed within the mitigation file. L. Final File Review and Data Tabulation A final eview of the file was pefomed to identify any additional infomation that was needed to complete the evaluation. Any new infomation that had become available since completion of the site inspection was eviewed at this time. Once all of the infomation had been eviewed, the peliminay atings wee adjusted as necessay and became the final ating. If no additional infomation was available, the peliminay field atings became the final ating. When all final file eviews had been completed the data fom the 78 Mitigation Site Review Summay Foms was enteed into an Excel spead sheet and tabulated. (See Appendix F.) 27

28 III. RESULTS A. Geneal Infomation This study povided the oppotunity to compile geneal infomation on past mitigation pojects that can be used in identifying poblem aeas and to make pogam impovements. Infomation was compiled fo the following categoies: poject type, poject location (i.e. county), aceage of wetland impacts, mitigation atios used, mitigation aceage equied, whethe the mitigation was constucted on-site o off-site and the age of the mitigation site at the time of evaluation. Specific infomation and final atings fo each of the 78 selected pojects along with epesentative photogaphs of the mitigation poject can be found in Appendix G. Final esults fo all 78 pojects ae summaized in Table 2. The esults fo each categoy ae summaized below. 1. Poject Type Seventeen diffeent types of pojects wee epesented in the 78 pemits that wee evaluated. Residential development was the most pevalent type of poject epesenting 17 pemits, o 22% of the pojects followed by industial development with 15 pojects (19%), commecial development with 14 pojects (18%), golf couse development with 8 pojects (10%), oad constuction with 5 pojects (6%). These five categoies epesent 75% of the pojects. Thee pemits involved landfill constuction, while esidential/golf couse combination, mining, wate teatment facilities, aipot expansions, and campgound constuction each involved two pemits. Six othe poject types involved one pemit. See Figue 5 fo the beakdown of poject types. Numbe of pojects (78) Residential (22%) 17 (19%) 15 (18%) 14 Industial Commecial Golf Couses (10%) 8 Roads (6%) 5 3 Landfill Resid. & Golf C... (4%) (3%) (3%) (3%) (3%) (3%) Aipot expansion Mining Wate Teateme.. Campgounds Misc. Types (6%) 6 Figue 5: Poject Types Poject types 28

29 Table 2: Mitigation Site Review Summay Fom Pemit Numbe 78 Pojects Poject/Applicant Name Poject Type (Golf Couse, Commecial Bldg., etc.) See figue 5 County See table 3 Aceage of Impact aces (total) Ratio 1.82 aveage, see figue 7 Mitigation Aceage Requied aces On o off-site 58 on site, 17 off site, 2 both Age of Mitigation Site 3.16 yeas Ave. See figue 10 Special Conditions Requied? Compliance? Mitigation aceage 57 (75%) 35 (63%) Mitigation plan 61 (80%) 43 (70%) Consevation easement 31 (41%) 11 (39%) As-built plans 38 (50%) 4 (11%) Monitoing 66 (87%) 21 (35%) Elevated Stuctues 13 (17%) 8 (61%) Due date fo constuction 34 (45%) 19 (57%) Pohibited Acts 36 (47%) 25 (80%) Coective Action 59 (78%) 7 (20%) Financial Assuances 9 (12%) 3 (43%) Numbe of sites equied 159 Numbe of sites constucted 136 (86%) Numbe of sites with equied wetland aceage 65 (50%) Numbe of sites with excessive open wate 58 (42%) Numbe of sites with insufficient hydology 43 (32%) Numbe of sites with wetland soils 80 (59%) Numbe of sites with active eosion 28 (20%) Numbe of sites with poo wate claity 36 (26%) Numbe of sites with invasive species poblem 11 (8%) Estimated loss of wetlands 45% of pojects did not 55 aces eplace at a min. of 1:1 Legal Rating 13 in compliance (18%) 61 non-compliance (82%) Biological Rating 20 successful (29%) 49 failue (71%) Oveall ating 15 successful (22%) 54 failue (78%) Quality ating Aveage ating

30 Follow-up site inspection pefomed by field staff 20 pojects inspected (26%) 57 not inspected (74%) Reason fo follow-up site inspection 13 outine follow-ups (17%) 6 followed up due to a epoted complaint (8%) 1 unknown eason (1%) Comments: 1 of evey 6 mitigation pojects (17%) eceives outine follow-up by DEQ staff. 1 of evey 12.5 mitigation pojects (8%) eceives follow-up due to a complaint. 1 of evey 7 mitigation pojects (14%) wee not constucted. (Authoized wetland impacts wee completed.) 2. Counties Pojects wee evaluated in 33 of Michigan s 83 counties (See Figue 1). Most mitigation pojects ae located within counties that contain lage metopolitan aeas and have expeienced apid gowth ove the last 15 yeas. Twenty-six of the pojects eviewed wee located within a five-county aea in southeast Michigan (Detoit Metopolitan Aea). Table 3 shows the numbe of pojects evaluated in each county. Table 3: Numbe of pojects evaluated pe county County # Pojects County # Pojects County # Pojects Washtenaw 12 Chippewa 2 Iosco 1 Wayne 6 Emmet 2 Isabella 1 Bay 4 Huon 2 Jackson 1 Genesee 4 Macomb 2 Manistee 1 Ottawa 4 Maquette 2 Menominee 1 Aenac 3 Mason 2 Ontonagon 1 Houghton 3 Sanilac 2 Saginaw 1 Ingham 3 Calhoun 1 Tuscola 1 Livingston 3 Chalevoix 1 Van Buen 1 Mackinac 3 Cheyboygan 1 Oakland 3 Gand 1 Tavese Allegan 2 Gatiot 1 30