Environmental Guide Book

INTRODUCTION

This publication is designed to address the environmental concerns associated with real estate transactions. It is directed to both the buyers and sellers of property used for residential or small commercial purposes. While it focuses more sharply on helping buyers avoid problems, the seller's perspective and responsibilities are also discussed. It is designed to assist the property owner who wants to be a better steward of the land; protecting not only the value of the property but also the beautiful natural resources of northwest Michigan.

The authors have done their best to provide useful and accurate information on the various topics covered. However, you should be aware that new laws and procedures are being developed all the time and existing laws are subject to differing interpretations. This booklet is no substitute for the advice of a competent expert in the field. Because of its size and format, this booklet simplifies complicated laws and complex scientific issues. If environmental or natural resource issues are involved, rely on the experts.

PROTECTION OF SPECIAL RESOURCES



Residents of beautiful northwest Michigan realize the importance of the special and unique natural resources that make this such a great place to live. Because of the ecological importance of these resources, there are federal, state and local laws specifically designed to protect them. Not all property owners will have these specially protected resources on their land, but if you suspect that you may, check the sections below. If you have further questions, check with the appropriate regulatory agency; usually the Michigan Department of Environmental Quality (DEQ).

WETLANDS

Value of a Wetland

Wetlands are important to the protection of environmental quality in many ways. They provide flood and storm water control by absorbing large quantities of water like a sponge. Wetlands also perform a valuable function by reducing flood potential and recharging groundwater aquifers. Wetlands are highly productive ecosystems for plant and animal life. Much of Michigan's fish and wildlife rely on wetlands for at least part of their life cycle.

Unfortunately, wetlands are often regarded as "useless swamps" by people who do not understand the valuable role they serve. Because wetlands are often situated next to lakes or streams, land owners may wish to fill them in, making it possible to build closer to the water or to create a dry lawn. While this may seem like a small impact on the total ecosystem, the cumulative impact is devastating. It is estimated that more than 50% of Michigan's wetlands have already been drained or ed. Because of the importance of wetlands, it is vital that we do not lose any more of these valuable resources. With the intent to protect our wetlands, both the federal and Michigan governments have enacted "no net loss" of wetland acreage legislation.

Wetland Laws

The Michigan DEQ regulates development in virtually all Michigan wetlands, pursuant to part 303 Wetland Protection of the Natural Resources and Environmental Protection Act, PA 451 of 1994. A permit is required to place fill in any wetland that is greater than five acres in extent, connected to an inland lake, stream, or one of the Great Lakes. The connection to surface water can be permanent, intermittent, or even through groundwater. Any wetland that is within five hundred feet (500') of an inland lake or stream, or one thousand feet (1000') of the Great Lakes is presumed connected. Wetlands of less than five acres that are not presently connected to a surface body of water are not usually regulated by the state, but may be regulated by a local ordinance. Check with the local zoning administrator or the DEQ to determine if there is a local wetland ordinance in your community.

Michigan law states that to develop in a regulated wetland, it must be proven that there are no "feasible or prudent alternatives" to developing in the proposed location. This must be proven, even if the applicant can show that an "unacceptable disruption will not result to the aquatic resources." It is almost always possible to relocate the development on the parcel, or reduce the size of the development to eliminate the need to fill the wetland. If the DEQ considers there to be a feasible or prudent alternative to filling the wetland, even if the option is less desirable to the applicant, the permit will be denied. There are some activities which are exempt from the need for a permit, if effects are minimized: 1) existing farming, 2) minor road improvements, 3) power line construction, 4) construction of farm or forestry roads.

Wetland Identification

Because of the importance of following state wetland law, it is essential to be able to recognize a regulated wetland. Because of the variety of wetland types and the difficulty of boundary identification, it is strongly recommended that a qualified wetland analyst be hired to assist in delineating the wetland boundaries on your property. To find a qualified analyst, ask the DEQ for a list of consultants. Any property close to a lake, river or stream stands a good chance of containing a wetland and should be inspected carefully.

Some natural features may exist on the property that could suggest the presence of a wetland. However, a wetland is not always obvious. While vegetation such as cattails is an obvious indicator of a wetland, many other plants also thrive in a wetland. Plants such as dogwood, cedar, willow, cottonwood, tag alder, buttonbush, and meadow grasses can also serve as wetland indicators. Cedar swamps, wet meadows, marshes, bogs and forested wetlands are a few of the different wetland types found in Michigan.

Standing water, during the growing season, usually indicates a wetland, but obvious evidence may not always be present. The property may only be seasonally wet and the wetland may not be visible in July or August. Other indicators include: a) matted leaves, b) water lines on trees, or c) drift lines of floatable debris.

Probably the most accurate and reliable method for determining if an area is a wetland is to have the soils examined by a trained professional. Soil borings show signs of a high water table. This evidence, along with vegetation, indicates the presence of a wetland to DEQ staff.

If you are interested in purchasing a piece of property for development that appears to have wetlands, you may take option on the property pending the delineation of the existence of a usable upland building site on the property. Do not rely on building inspectors, health department personnel , or even your real estate broker to assure you that property does not contain wetlands. The DEQ will sometimes delineate the wetlands on property if you are applying for a permit; however, recent budget cuts have made wetland identification by DEQ personnel difficult for many district offices. Call the Land and Water Management Division at the number listed in the back of this booklet for further assistance.

INLAND LAKES AND STREAMS

Michigan is know as The Water Wonderland not only because of the Great Lakes, but also because of the vast number of high quality inland lakes and streams. The people who live in, and visit, the Grand Traverse area enjoy these resources for recreation as well as aesthetic beauty. The quality of our water resources is closely tied to our quality of life in this region. As more people move to the area to live and play on the lakes and streams, increased pressure is placed on these resources

Part 301, Inland Lakes and Streams, of the Natural Resources and Environmental Protection Act, P.A. 451, (Act 451) regulates construction activities on and near inland waters. This law applies to any natural or artificial lake or pond greater than five acres in size; and any stream or creek with defined banks, and continued flow, or regular occurrence of flow.

Activities within the Great Lakes are regulated by Part 325. Great Lakes Submerged Lands, of Act 451 that will be discussed later. Waterfront property owners and prospective buyers should be familiar with the section titled Riparian Rights in this document.

The Inland Lakes and Streams portion of Act 451 prohibits certain activities on bottomlands of a lake or stream in order to protect the public's right to boat, fish, swim, and enjoy inland waters.

Certain activities are allowed without a permit, including the installation of a seasonal, non-commercial dock, and the reasonable sanding of upland beaches landward of the water's edge. Structures installed before April 1, 1966, are automatically permitted under the law, as is fill installed before January 9, 1973, in waters covered by Part 301, Inland Lakes and Streams, of Act 451. If you are considering the purchase of waterfront property with a permanent improvement in the water, it may be a good idea to ask the owner when the improvement was installed, and if a permit was granted by the DEQ. The owner may be required to remove the structure some time in the future if it was unlawfully constructed.

Prior to new construction in inland waters, such as a breakwall or permanent pier, it must be proven that the construction will not harm the environment or the public enjoyment of the resources. Permit applications are reviewed by the Land and Water Management Division of the DEQ.

NATURAL AND SCENIC RIVERS

Many of the state's unique rivers and streams are protected as State Natural Rivers, or Federal Wild and Scenic Rivers. Special river front zoning by townships, counties, and the Department of Natural Resources (DNR) requires increased setbacks for buildings and septic systems, minimum lot sizes and vegetative buffers on stream banks. Such zoning applies within an 800 foot (800') wide corridor along affected rivers. The Forest Management Division of the DNR can provide you with a map and list of affected streams, and a schedule of zoning requirements.

FLOODPLAINS

Floodplains can be hazardous areas to occupy and, like wetlands, are important areas that help manage the flow of excess water. While these areas may appear to be desirable for some developments because they are flat and located near flowing water, they may be very poor places to build. Floodplains are vital for controlling periodic flood events.

Regulations under Part 31, Water Resources Protection, of Act 451, restrict the placement of fill and permanent structures in a floodplain. Locally enforced building codes and restrictive deed covenants on residential subdivisions prohibit basement construction and require structures to be elevated above anticipated flood heights. Federal banking regulations require that flood insurance be purchased as a condition of a mortgage within identified floodplain areas. A permit must be obtained from the DEQ prior to construction or placing fill within riverain floodplains to insure that residential structures will not be placed within the most hazardous portions of floodplains; flood flows will not be obstructed or unnaturally diverted; and critical flood water storage areas will not be depleted. The boundaries of floodplains for most major bodies of water are mapped and kept by local units of government and the DEQ's Land and Water Management Division. Contact the DEQ District office near the property of interest, or the building department of the city, village, or township within which the property resides for further information.

GREAT LAKES SUBMERGED LANDS

Just as the DEQ regulates dredge, fill, and construction within inland lakes and streams, Part 325, Great Lakes Submerged Lands, of Act 451 regulates these activities in the Great Lakes. The U.S. Army Corps of Engineers is also involved in the Great Lakes bottomlands because of their concern for public navigation, recreational uses, and water quality. The State of Michigan, not the owner of the waterfront or shoreline property, owns the property creating the bottomlands.

The boundary between the state-owned lake bottoms, and private property is set at the "ordinary high water mark." On Lake Michigan the ordinary high water mark is 580.5 feet (580.5'), IGL Datum, 1985. Since this level remains constant, during years of low water the lake level may expose some of the state-owned bottom land. Conversely, during years of high water the lake level may exceed the ordinary high water mark and the public has a right to boat, fish, or hunt over submerged private property. At all times, people may gain lawful access to the water and walk along the shoreline indefinitely, provided they remain in the water.

Activities prohibited in the Great Lakes without a permit include dredging an artificial channel or moving boulders, putting fill into the Great Lakes, constructing a permanent dock or connecting the Great Lakes to other bodies of water. A seasonal non-commercial dock or boat lift is not regulated by the DEQ, and may be constructed without a permit if no dredge or rock removal is involved.

Under this part of the Act, an applicant obtains a permit from the DEQ and the application is automatically reviewed by the Army Corps. If a structure was placed in the Great Lakes without the proper permits the DEQ and/or the Army Corps could require it to be removed. Buyers may want to inquire whether or not a permanent structure on the Great Lakes bottomlands was properly permitted.

SAND DUNES

Part 353, Sand Dune Protection and Management, of Act 451, regulates most commercial and residential development in dunes. The DEQ has compiled a Critical Dune Atlas that delineates all regulated dune areas. You should check to see if your property is listed in the atlas. A copy of the atlas is available at the DEQ district office near you, the Northwest Michigan Council of Governments, or with the district Sea Grant agent. (See resource list in back of booklet.) You may also contact the DEQ in Lansing at 517-373-1950.

The Sand Dune Protection and Management portion of Act 451 protects 70,000 acres of this fragile resource along the Lake Michigan and Lake Superior shorelines extending as much as one and one-half mile inland in some places. Unless a special exception is granted the Act prohibits:



A permit is required from the DEQ for any vegetation removal, earth moving and/or construction within a critical dune area.

The Sand Dune Protection and Management portion of Act 451 can be very difficult to interpret. Make certain you consult with your county planning department or with the DEQ if you have any questions.

HIGH RISK EROSION AREAS

Along the Great Lakes, part 323, Shorelands Protection and Management of Act 451, regulates development in areas designated as high risk erosion areas. The regulations require setbacks, and sometimes require construction design that makes a building easier to relocate when threatened by erosion. Each property owner in a designated high risk erosion area received a certified letter from the DEQ at the time of designation. The areas are updated and the property owners re-informed about every ten years. The DEQ has a list of all tax parcel numbers which are so designated. Your local building official has a listing, or you may contact the DEQ in Lansing at 517-373-1950 to check on a particular parcel.

A permit is required for any building or septic system constructed anywhere on a designated parcel. Permits are also required for additions, including second floor additions, substantial improvements, and repair of damage or deterioration exceeding 60% of the structure's value. Normal maintenance or remodeling which is less than substantial improvement does not require a permit. Applications for permit may be obtained from the building department, or by calling the DEQ.

ENVIRONMENTAL AREAS

Special areas along the Great Lakes have been designated as Environmental Areas. These areas contain habitat that has been determined to be necessary for the preservation and maintenance of fish and wildlife. The property owners were notified of this designation by certified mail, however, ownership may have changed. These areas usually contain wetland vegetation along the shoreline, or are a rookery for costal dependent birds. If this type of habitat exists on a property, you can check with the DEQ by calling 517-373-1950 to verify the property's status.

A permit is required for any dredging, filling, grading, other alterations of the soil or drainage, alteration of the vegetation utilized by fish or wildlife, and the placement of permanent structures. Maintenance of existing dikes, and timber harvest outside of identified colonial bird nesting areas does not require a permit. Applications for permit can be obtained from any DEQ office, or by calling the telephone number above.

FARMLAND AND OPEN SPACE PRESERVATION

In 1974, the Michigan State Legislature adopted the Farmland and Open Space Preservation Act. This is now part 361, Farmland and Open Space Preservation, of Act 451. This part attempts to preserve agricultural and open space lands by allowing the land owner to enter into a legally binding document with the state, agreeing not to develop the land. In exchange for not developing the land, the land owner may receive special tax consideration.

The legally binding easements or agreements are for a time period of between 10 years and 90 years, and are recorded at the County Register of Deeds in the county in which your property is located. Since these agreements restrict the development of property, it is important to know if the property you are considering for purchase is enrolled in an easement or agreement. In addition, it is important to know if the property is enrolled because repayment of some or all of the tax benefit received may be required at some point during the course of the easement or agreement.. If you find that the land is enrolled, call the Farmland and Open Space Preservation Unit, Real Estate Division, of the Department of Natural Resources, for assistance.

RIPARIAN RIGHTS

The owner of property located on the water front is called a riparian owner. Riparian owners have certain general rights that other land owners do not have. The most obvious of these rights is access and docking into water and its surface for boating or recreation. Some rights, however, may not be exercised without permission from the DEQ. A riparian owner on an inland lake or stream actually owns the bottomlands under the water. This ownership is subject to the shared right of other riparians, and the public, to boat and fish the entire surface of the lake or stream. In addition, the riparian owner has rights to put out a dock, moor a boat on a buoy, and use the water for irrigation. Riparian rights automatically come with waterfront property.

It is possible for a person to have a share in riparian rights without individually owning property on the water. Some subdivisions in the Grand Traverse region jointly create riparian rights in non-riparian owners. These rights can either be obtained through a lot designated as a common waterfront access, or through proportional ownership in a lot on the water. All the lot owners in such a subdivision have shared riparian rights through their ownership in the common lot. A private road or drive that dead ends at the water can also ensure access for shared riparian owners. However, a road access does not necessarily confer the right to moor a boat, or install a dock. If the road is a public road, access is guaranteed, but the law states that you may not put your boat on a permanent mooring at the end of a public road.

Another way for non-riparian landowners to acquire riparian rights is to have an easement granted to their property by an adjoining riparian owner, forever guaranteeing access to the water from their property. This should be listed on the deed, and be able to be confirmed with a title search. Remember, verbal permission from a neighbor extended to a previous owner might not be extended to you as a new owner. Furthermore, a verbal agreement can be revoked at any time.

Watch our for subdivisions with a waterfront lot, or property which is not formally reserved in writing to the use of all the lot owners. In one instance, numerous lot owners used the "subdivision beach" for many years, only to have the developer sell it as a high-priced beach lot. If it is not reserved in your deed, or the subdivision plat, you can't be sure of access.

There may be a limit to the number of people allowed access to the water through shared ownership of riparian property. Land use planners call granting access through shared ownership "funneling." Each year riparian owners take cases to the state legislature, the courts, and local governments to limit the funneling of large numbers of waterfront users through small private lots. Presently the question is whether the number of people being funneled unreasonably interferes with the rights of other riparian owners.



PREVENTION AND DISCOVERY OF

ENVIRONMENTAL CONTAMINATION



While not all property owners have resources requiring special protection measures, preventing environmental contamination is the responsibility of all property owners. Northern Michigan is a beautiful place to live because of its tremendous natural resources. As more people move to the region, their cumulative impacts on the land can negatively affect the qualities that attracted them.

In addition to preserving northwest Michigan's beautiful natural resources, environmental awareness can also protect you from expensive environmental cleanup liability. Many federal and state laws designed to protect the environment impose fines and cleanup liability on property owners who have contaminated property. The following section discusses some sources of environmental contamination and ways property owners can reduce the risk of problems on their land.

CONTAMINATION AND ENVIRONMENTAL REMEDIATION PART 201

The words "environmental contamination" have taken on new meaning in the last several years. Not long ago, environmental pollution referred mainly to major chemical spills in lakes or streams or the release of enough toxic chemicals to show immediate effects on fish or wildlife. Pollution was something only large industrial plants produced; certainly not something of concern to an ordinary homeowner, or small business owner. Most people know now that anyone who uses hazardous materials in any quantity has the potential to cause an environmental contamination problem. This does not mean that homeowners or small businesses were not creating similar problems before. . .they just did not realize it was pollution.

Part 201 of Act 451, which deals with environmental remediation (formerly the Michigan Environmental Response Act) defines environmental contamination as "the release of a hazardous substance. . .in a quantity which is, or may become, injurious to the environment, or to the public health, safety, or welfare." The purpose of this law is to identify and rank sites of environmental contamination, and assign civil or criminal liability to pay for the cleanup of these sites. Currently, the Michigan Department of Environmental Quality (DEQ) Environmental Response Division staff has identified more than 3,400 sites of environmental contamination throughout the state. The Michigan Department of Environmental Quality and the Michigan Society of Planning Officials have identified several land use activities with high potential for groundwater contamination, as well as pathways by which contaminants can reach groundwater.

HIGH HAZARD LAND USES



PATHWAYS TO GROUNDWATER

For more information, contact your county health department.

Contamination can, according to Part 201 definitions, impact "land surface water, groundwater, subsurface soil or strata, air, fish, wildlife, or biota." The most common problems, and expensive to clean up, are those impacting soil and groundwater. Soil and groundwater contamination occurs whenever a hazardous substance is released onto or into the ground. Much of northwest Michigan has very sandy, permeable soils which allow contaminants to spread quickly underground. This type of soil also makes cleanups difficult and costly, and places our drinking water at risk. Chapter 3 of this booklet further addresses ways property owners can reduce their risk of assuming civil or criminal liability for cleaning up contamination.

SOIL EROSION AND PERMITS

Michigan waters are often adversely affected by soil erosion. Sedimentation is the largest pollutant in surface water: silt, sand, and other soils run off sites where vegetation has been removed, and clogs creeks and streams, damaging the natural environment. Sediment affects the bottom of the creek, stream, or lake where it eventually comes to rest. Sandy bottoms formed as a result of such runoff are areas where few species can survive, creating a virtual "aquatic desert."

Erosion occurs not only on property near lakes and streams, but also on parcels far from water. During heavy ranis or spring snow melts, fast moving water can carry sediment long distances. When land is covered with plants, the roots stabilize the soils and naturally slow the water, which helps prevent erosion. However, on steep slopes and sandy soils, two common features in northern Michigan, plant removal exposes bare soil to the elements, and hastens erosion.

To protect lakes and streams, Michigan adopted Part 91, Soil Erosion and Sedimentation Control, of Act 451. this portion of the Act requires a permit for any earth change activity within five under feet (500') of a lake or stream, or any earth change activity that disturbs one or more acres of land. Part 91 is administered by each county by an agency selected by the County Board of Commissioners; typical agencies responsible for administering Part 91 include the Drain Commission, Road Commission, Health Department, Building Department, and Soil Conservation District.

FLOWAGE EASEMENTS AND STORMWATER REGULATION

Stormwater management is an important concept to understand because of the detrimental effects of erosion and flooding. Whenever property owners alter the flow of water, or reduce the amount of natural infiltration by covering the ground with a structure or pavement, they need to consider the downstream impacts of additional water.

Some counties have an elected drain commissioner to oversee the construction and maintenance of drains controlling stormwater. A designated drainage district would require an approved plan for the disposal of stormwater at a building site. A recommended practice for stormwater drainage is to direct it to an area where it can naturally infiltrate into groundwater rather than place additional water into streams.

Sometimes a change in the drainage patterns on a piece of land can place excess water onto a neighbor's property. It is possible to make arrangements for the discharge of water on a neighboring parcel by obtaining a flowage easement. Similar to a right of way, a flowage easement grants the right to use someone else's property for the passage of water. watch developments on neighboring parcels to determine if they will be adding stormwater to your property.

RESIDENTIAL PROPERTY OWNER CONCERNS

While there are many advantages to owning property outside of an urban environment, additional responsibilities are placed on the rural property owner. Maintaining a septic system, drilling a water well, providing for a source of heating fuel, and disposal of wastes are all concerns that rural residents must consider. cutting costs when planning for these necessary expenses may enter one's mind, but remember that the cost of correcting an environmental contamination problem will always be considerably higher than taking preventative measures. If you are considering developing, or purchasing property in a rural area, be sure to read the following sections carefully.

Septic Systems

Your septic system is one of the most important, and least appreciated, features of your home or business. Along with the water well, it is part of the life support system for rural dwellings. It is important that your septic system by in proper working order, as a failing septic system can reduce property values, and cause health and environmental problems. Adopting simple preventative maintenance measures will keep your septic system functioning Properly. Keep in mind that replacing a septic system can cost up to $5,000.00.





MAINTAINING YOUR SEPTIC SYSTEM


Signals of septic system problems:



To prevent septic system problems:

DO

DON'T