THE NATURE AND EX'EENT OF 508; 3.333101%
AND SEBEMENT COE'YROL fiEGSLkTEGRS
EN MICHEGAN

Tf‘lflts §oc= {‘Em Begum a? M. 5.
EEICEEGAN STATE UNIVERSE“
Dale Dennis Kraus
1972

ABSTRACT

THE NATURE AND EXTENT OF SOIL EROSION
AND SEDIMENT CONTROL REGULATIONS
IN MICHIGAN

BY

Dale Dennis Kraus

Erosion and sediment, once thought of as rural
problems, are causing extensive damage to the soil and
water resources of developing urban and suburban areas.

As such, it is becoming important that soil and water
resources be managed and controlled as a whole and not
on a fragmented basis by a few individual units of local
.government.

This study was designed to determine the nature
and extent of soil erosion and sediment control regulations
in Michigan. To accomplish this objective, existing
federal, State, and local regulatory control procedures
were examined. A questionnaire was used to determine the
status of existing local soil erosion and sediment control
ordinances. Accordingly the status of related zoning
ordinances, subdivision regulations, building codes and
housing codes were examined. An index was designed and
used to rate the prominent provisions contained in the

local soil erosion and sediment control ordinances reviewed.

Dale Dennis Kraus

Sediment is a declared water pollutant, and its
control is a function of both federal and Michigan govern-
mental units. However, on the whole, statewide regulatory
controls for soil erosion and sedimentation are found to be
non-existant.

While the role of local governmental units to
control soil erosion and sedimentation is increasing, their
regulatory controls are not functionally coordinated.
Accordingly, local soil conservation districts lack adequate
powers to enforce the implementation and maintenance of soil
erosion and sediment controls.

New legislation needs to be implemented to provide
statewide minimum standards and formats for local units of
government to adOpt and implement soil erosion and sediment
controls. Erosion and sediment control regulations should
be coordinated along with the total concept of land use
planning; yet they should remain flexible to meet the needs

of individual areas.

THE NATURE AND EXTENT OF SOIL EROSION
AND SEDIMENT CONTROL REGULATIONS
IN MICHIGAN

BY

Dale Dennis Kraus

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

Department of Resource Deve10pment

1972

ACKNOWLEDGMENTS

In recognition for the interest and guidance I
received in completion of my masters program I would like
to express appreciation to Professor Valsin, Chairman of
the Department of Resource Development, College of Agri-
culture and Natural Resources, for granting me a research
assistantship, and Professor Dersch, my major prefessor,
for his assistance and encouragement.

Secondly, recognition is due to the employees of
the Soil Conservation Service of Michigan, and to Mr. Clark
Eacker, District Conservationist, of the Washtenaw Soil
Conservation District.

Finally I would like to express thanks to my wife,
Susan, for her continued support and encouragement through
our year at Michigan State University and our first year

of marriage.

ii

Chapter

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . .

II. EROSION AND SEDIMENT CONTROL LEGISLATION

Statement of Purpose . . . . . .
Problem Description . . . . . .
Definition of Terms . . . . . .
History . . . . . .
Michigan' 3 First Soil Erosion and

Sediment Control Ordinance . . . .

Federal Regulations . . . . . .
Michigan Regulations . . . . . .

Local Controls . . . . . . .
Existing Erosion and Sediment Control
Ordinances . . . . . . . .

Local Commissions, Ordinances,

Regulations, and Codes . . . . .
Private Action . . . . . . . .
Summary . . . . . . . . . .

III. PROBLEM EXAMINATION . . . . . . .

IV. CO

BIBLIOGRAP

APPENDICES

State Controls . . . . . . . .
The Task Force Approach . . . . .
An Erosion and Sediment Control Index

NCLUSIONS AND RECOMMENDATIONS . . .
Conclusions . . . . . . . . .
Recommendations . . . . . . .
HY O O O O O O O O O O O 0

iii

Page

i—l

£0th

11
14
14
16
20
22
24
3O
33
35
35
39
42
54

54
56

58
61

5.

LIST OF TABLES

Soil Erosion and Sediment Control Ordinances
Planning Boards or Commissions . . . . .
Zoning Boards or Commissions . . . . .
Local Codes, Ordinances, and Regulations .

A Soil Erosion and Sediment Control
Ordinance Index . . . . . . . . . .

iv

Page
24
27
28

29

44

Figure

1.

LIST OF FIGURES

Michigan's Changing Population . . . . .
Erosion from a single home construction site

Government Levels at Which Local Ordinances
May Be Adopted . . . . . . . . . .

42

CHAPTER I

INTRODUCTION

In an era of rapidly expanding suburbs, extensive

alteration of the

landscape, and intensive use of land is

resulting in serious soil and water problems. Erosion

resulting in sediment, once thought to be an exclusively

rural problem, has become a serious problem in urban and

suburban areas.

agricultural uses
sites, roads, and
costly repairs to
embankments. The
and road ditches,

and reservoirs.

Erosion and sedimentation from non-

such as housing developments, industrial
recreational areas are making necessary
gullys, washed out fills, roads, and
products of erosion clogs storm sewers

muddies streams and silts lakes, rivers,

Programs to alleviate such problems must be rooted

in law. Without a legal foundation, program effectiveness

becomes merely a phrase and program accomplishment merely

an illusion.1

 

1

Mel D. Powell, William C. Winter, and William P.

Bodwitch, Community Action Guidebook for Soil Erosion and

 

Sediment Control (Washington, D.C.: National Association
of Counties Research Foundation, 1970), p. 18.

Lt.

. flue
:J an» .

Michigan has known two great population displacements
--the first from farms to cities and the second from the
cities to the suburbs. "In 1900, only 39 per cent of
Michigan's 2.4 million residents lived in urban areas, . . ."
"In 1966, over 90 per cent of Michigan's 8.1 million resi-
dents lived in urban or suburban areas, . . ."2 The rate at
which this change is occuring emphasizes the importance of
the developing and implementing regulatory controls concern-

ing Michigan's soil and water resources. Figure 1 illustrates

the trends of Michigan's p0pulation displacement.

Statement of Purpose

 

This study is designed to eXplore the nature and
extent of soil erosion and sediment control regulations as
they exist in Michigan with major emphasis on non-agricultural
lands. In order for this purpose to be accomplished, it will
be necessary to examine the status of existing ordinances
and how they fit into existing planning and regulatory
schemes within the various governmental levels within
Michigan. In addition to the major goals mentioned above,
recommendations will be made concerning the need for new

legislation and legislative revision.

2William J. Kimball and Gordon Bachman, "Focus on
Land Use in Michigan," in Land Use in Michigan, Extension
Bulletin No. 610, Natural Resources Series (E. Lansing:
Cooperative Extension Service, Michigan State University,
January, 1969), pp. 11-12.

 

Population in Millions

8 E Urban

m Rural non-farm 1

Rural

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

80 90 1900 10 20 30 40 50 60 70

Years

Figure l.--Michigan's Changing Population

Source: U.S. Bureau of Census Dencennial Reports

Problem Description

This study is concerned with the subject of erosion
and sediment control regulation within Michigan. Accord-
ingly, the problem to be dealt with is not that of technical
or physical measures that might be used to halt erosion or
sedimentation, but rather the problem is one of regulatory
controls or enforcement. Physical erosion and sedimentation
is a recognized problem and the various physical controls
needed to reduce its harm are generally available.

Regulatory measures to control erosion and sedimen-
tation are fragmented throughout the vertical hierarchy of
legislative jurisdiction. Regulations exist at the state,
county, township, and municipal level. Overlapping of
local regulatory controls are frequent and often unenforced.
Accordingly some areas are effectively void of any type of
erosion or sediment control regulation. Ordinances are
either non-existant or funds, manpower, and technical
knowledge are not available to enforce the regulations.

A study conducted in Kent County in 1969 found that
land in the "Developing Urban" category had an erosion rate
of 8.48 tons/acre/year as compared to the land in the
"Agricultural" category which had an erosion rate of 1.11

tons/acre/year.3 An earlier study conducted in southeastern

 

3Terry A. Ringler and C. R. Humphrys, Soil Erosion
in a Urbanizing Watershed, Research Report No. 133, Natural
Resources (East Lansing, Michigan State University and
Agricultural Experiment Station, March, 1971): PP. 5-6.

 

 

 

 

 

 

 

 

Figure 2.--Erosion from a single home construction site.
A local example of the need for non-agricultural
erosion and sediment control regulations.

East Lansing, Michigan

Michigan on a site by site basis, estimated annual soil loss
from nine sites in four urbanizing categories at 17 to 540
tons per acre.4 Another study conducted in Maryland yielded
the following statement:

Because construction denudes the natural cover

and exposes the soil beneath, the tonnage of sediment
derived by erosion from an acre of ground under con-
struction in developments and highways may esceed
20,000 to 40,000 times the amount eroded from farm
and woodlands in an equivalent period of time.5

It seems as if regulations need to be established
or implemented to deal with erosion rates for the type of
examples just stated.

At present there exists no state or regional legis-
lation aimed solely at controlling erosion and sediment. As
long as local governmental units or agencies comply with the
various enabling statutes, they are free to design and adopt
almost any type of ordinance to control erosion and sediment
without falling into any overall regional guidelines. Since
specific regional or state guidelines are non-existant, local

governments may be tempted or encouraged to disregard erosion

and sediment controls to attract large scale develOpments for

 

4J. H. Schmidt and A. W. Summers, "The Effect of
Urbanization on Sedimentation in the Clinton River Basin"
(Ann Arbor: University of Michigan, 1967).

5Ibid., p. 2, M. Gordon Wolman, Problems Posed by
Sediment Derived From Construction Activities in Maryland
(Report to the Maryland Water Pollution Control Commission,
Annapolis 2, Maryland, January, 1964), p. 111.

tax purposes at the cost of proper soil management and
ultimate sedimentation to waterways.

Conservation practices are widely known, but their
affective implementation on non-agricultural uses such as
housing developments, industrial sites, roads, and recre-
ational areas depends largely on the extent to which erosion
and sediment controls are adOpted and enforced.

Erosion and sediment inflict heavy damages upon
local governments, businesses, and citizens. Related
financial costs to local communities must be born either
through higher taxes or direct expenditures to repair
damages to private or public property.6 If an existing
regional or state regulatory agency is to forcefully regu-
late erosion and sediment, the problems of manpower, techni-
cal aid, and finances need to be overcome.

The problems associated with erosion and sediment
control regulation become very complex and inter-related
when examined closely. The intensity and number of problems
vary from one area to the next, but certain major problems

are identifiable to most areas. These being:

1. The lack of state or regional guidelines with
accompanying minimum erosion and sediment control

standards;

 

6Powell, Winter, and Bodwitch, Community Action
Guidebook for Soil Erosion and Sediment Control, p. 5.

 

2. The fragmentation and sporadic existence of

regulatory controls;

3. The lack of adequate inspections and implemen-

tation of existing state and local regulations.

Definition of Terms

 

Common reference for the definition of various terms
used throughout this study is essential. The following
definitions apply throughout this study unless otherwise
indicated.

Erosion refers to soil erosion resulting from the
influence of construction activities associated with the
natural process of rainfall and its movement of soil

particles. Likewise sedimentation refers to soil that has

 

been carried and deposited from the construction site by

the action of water. An erosion and sediment control

 

ordinance refers to particular ordinances or sections of

 

existing ordinances that have been designed and/or adopted
for the sole purpose of soil erosion and sediment control.

As used in this study the term Ordinance refers to a soil

 

erosion and sediment control ordinance. An Ordinance does
not include other types of regulatory controls that give
brief mention to the erosion and sediment problem.

Other terms used in the description of this study
that require a precise definition are given in a Glossary

in Appendix A.

History

The first interest in soil erosion and sedimentation
did not come from within Michigan nor from within the United
States. Terraces were constructed and fields were irrigated
long before America was ever discovered:7

One of the early efforts to conserve soil and to
improve crops in the United States was initiated in the late

1600's.8

However, public awareness and concern about soil
erosion or conservation was not recognized in the United
States until the 1930's. In 1933 the Soil Erosion Service
was established under the Department of Interior and

5 million dollars was appropriated for soil erosion pre-

vention work on public and private lands.9

In the following
years the Dust Bowl of the Great Plains states occurred
which consisted of massive dust storms which carried silt
particles eastward hundreds of miles. In 1935, the Soil

Conservation Service was established in the Department of

 

7Raymond Furon, The Problem of Water: A World

Stud , trans. by Paul Barens (New York: American Elsevier
Publishing Company, Inc., 1967), pp. 42-68.

8U.S. Department of Agriculture, Early American Soil

Conservationists, Misc. Publications No. 449 (Washington,
D.C., October, 1941), p. 58.

 

9History of the Soil Conservation Service in Michi-
gan, Publication for Statewide Training Meeting of Soil
Conservation Service: Personnel Committee (April 10-12,
1972), P. 3.

10

Agriculture and developed into the primary federal agency
concerned with soil conservation.

Michigan soils had also taken a heavy toll by 1930
from the rapid expansion of lumbering and farming. Virgin
soils were no longer in tact. Erosion by both wind and
water had stripped much of the topsoil from cultivated
fields and cut over forest lands.10

In 1929 Act 245 was passed which was the initial
legislation responsible for the creation of the Water
Resource Commission in the then Michigan Department of
Conservation. "By 1930, soil erosion and declining fertility
were recognized as acute problems in most sections of Michi-
gan. Soil and water conservation became major objectives in
the agricultural programs of the then Michigan State College

11 In 1935 the first

and Cooperative Extension Service."
erosion demonstration project in Michigan was established in
Berrien County with headquarters at Benton Harbor. Similar
demonstration projects were established in the Fenton area
in Livingston County and in Grand Traverse County. In 1937
the Michigan Legislature, in Act 297 of the Public Acts of
that year, adopted the Soil Conservation Districts Law and

the State Soil Conservation Committee was established in the

Michigan Department of Agriculture. Subsequently, in 1938,

 

10Russess G. Hill, "A Brief History of Soil Conser-
vation Districts in Michigan," (September 5, 1965), pp. 1-2.

llIbid., pp. 1-2.

11

Ottawa County adopted the first soil conservation district
in Michigan. Since 1938 all eighty-three counties have
been included in soil conservation districts with Oceana
County organizing into a soil conservation district in the
spring of 1972.

The Soil Conservation Districts Act originally
contained sections that provided for the adoption and
enforcement of land use and treatment regulations. However
these sections were repealed in 1945 because districts
preferred to make technical assistance in erosion control
and land use planning available upon request, rather than
through enforcement procedures. As such, the majority of
early effort of soil conservation were aimed at the agri-
cultural and rural sectors of Michigan.

It was not until the Spring of 1970 that a local
governmental unit adopted the first soil erosion and
sediment control ordinance in Michigan.

Michigan's First Soil Erosion and Sediment
Control Ordinance

 

 

On March 30, 1970, the city of Ann Arbor adOpted the
state's first erosion and sediment control ordinance (The
Ann Arbor Soil Erosion, Sedimentation Control and Land
Balance Ordinance). This initial action, along with the
continued backing of the State Soil Conservation Service,

Districts and Committee has been primarily responsible

12

for the current movement to adopt local erosion and
sediment control ordinances.
As a part of its educational program, the Washtenaw
~County SCD in recent years has taken upon itself the task
of conducting annual citizen conservation tours. Tradition-
ally the tours were rural oriented with emphasis on agri-
cultural conservation practices. However, in recognition
of recent land use changes and in recognition of the in-
creasing amount of urbanization taking place in the
surrounding area, the 1969 conservation tour was conducted
almost entirely within the city limits of Ann Arbor.
Concerned citizens, along with the mayor's committee
on Natural Resources, recognized the amount of erosion and
sedimentation occurring within the city of Ann Arbor.

Concern grew when a subdivision was approved by
the planning board on what the committee felt would
be a major sediment-producing area.

Corrective action was taken in the form of an
erosion control plan prepared for the developer by
the Soil Conservation Service technicians cooperating
with the Washtenaw Soil Conservation District. Meet-
ings were held with the developer, Soil Conservation
District directors, and planning officials. A volun-
tary agreement was reached to control erosion and the
resulting sediment during the construction of this
particular subdivision.

The committee members, feeling this was not
enough, then started aggressive action that would
require all developers to include erosion control
measures on any future projects. Working with
officials, Soil Conservation District directors,
builders, and planners, this committee set up a
task force to examine and develOp workable procedures
for controlling erosion on developing areas.

In the meantime the Washtenaw Soil Conservation
District c00perating with the Soil Conservation
Service was developing standards and specifications
for controlling urban erosion.

13

After public hearing, revisions, reviews, of both
the ordinance and the standards and specifications,
Ann Arbor became the first municipality in Michigan
to pass an ordinance controlling erosion on construc-
tion sites.1

The above develOpment and adoption of the ordinance
represents only the second stage of controlling erosion and
sedimentation. The first stage consists of the physical
methods and technical skills to halt erosion and sedimen-
tation. These methods are readily available. However,
the third stage of enforcing erosion and sedimentation
controls remains to be accomplished.

Following the adoption of Ann Arbor's city ordinance,
the State Office of the U.S. Soil Conservation Service
develOped and distributed a model ordinance to local soil
conservation districts. The districts in turn worked with
other local units of government to encourage some type of
erosion and sediment controls. In some instances this model
ordinance was adopted as either a county or township
ordinance with only minor alterations.

It was through these types of mediums that local
governmental units became aware of the availability of

erosion and sediment control ordinances as a means to regu-

late non-agricultural caused erosion and sedimentation.

 

12Robert G. Halstead, "Urban Sediment Control in
Action," A Presentation at the Annual Meeting of the Soil
Conservation Society of America (Columbus, Ohio, August 17,
1971): PP. 5'6.

0’
L" 2
(D

SEC

and

(I)

ta'

CHAPTER II

EROSION AND SEDIMENT CONTROL LEGISLATION

There are many statutes, enabling acts and regulatory
agencies related to the environmental spectrum having influ-
ence over erosion and sediment control. They range in number
and sc0pe from the federal level to the village level. Most
controls tend to be of a general nature, allowing the next
smaller unit of government on the vertical scale to pre-empt

the broader controls by the meeting of minimum standards.

Federal Regulation
As a result of the Water Quality Act of 1965,
amended by the Clean Water Restoration Act of 1966, all
states are required to enact water quality standards related
to interstate waters or have such standards established by
the federal government by default.1 Pursuant to the Water
Quality Act, standards must "enhance the quality" of waters

and be accompanied by a plan for implementation and

 

1"The purpose of this act is to enhance the quality
and value of our water resources and to establish a national
policy for the prevention, control, and abatement of water
pollution." 79 Stat. 903 (1965); 33 U.S.C. Sec. 466, (1964
Supp. V.).

14

15

enforcement. Accordingly the water quality standards of all
states are subject to review and approved by the appropriate
federal agency.

Federal water quality standards declare that tur-
bidity is a pollutant where it interferes with the beneficial
use of water. Sediment thereby falls under the provision of
the Water Quality Act of 1965 and the Federal Pollution
Control Act of 1970.2

A Federal Water Pollution Control Administration
was subsequently established under the 1965 Water Quality
Act to deal with matters concerning water pollution and
placed in the Department of Health, Education, and Welfare.
Since its creation, the Federal Water Pollution Control
Administration has been transferred to the Department of
Interior in 1966 and again transferred to the Environmental
Protection Agency in 1970. The Environmental Protection
Agency now heads most of the pollution control and abatement

activities previously assigned to the various federal

departments and agencies.3

 

262 Stat. 1155 (1948) as amended, 33 U.S.C. 446 to
446g, 466h to 466k, Amended Water Pollution Control Act
Amendment of 1956, 70 Stat. 498 Federal Water Pollution
Control Act Amendment of 1961, 75 Stat. 204; Water Quality
Act 1965, 79 Stat. 903; Clean Water Restoration Act of
1966, 80 Stat. 1246, and the Federal Water Pollution
Control Act of 1970, 33 U.S.C., as last amended by Pub. L.
91-224, 84 Stat. 91 (1970).

3Environment Reporter, "Federal Laws," pp. 51:
1601-1901.

of
The
vat

and

Preve
govex
gram

in (ya

16

The U.S. Soil Conservation Service of the Department
of Agriculture has taken the lead in the physical aspects
of erosion and sediment control since its creation in 1935.
The Soil Conservation Service functions to "assist" conser-
vation districts, communities, watershed groups, federal
and state agencies, and other cooperators with erosion con-
trol and water management problems in bringing about needed
physical adjustments in land use. The purpose of the Soil
Conservation Service is to conserve soil and water resources,
improve agriculture and reduce damages caused by floods and
sedimentation.4

Public Law 566 (The Watershed Protection and Flood
Prevention Act) provides for cooperation between the federal
government and the states and their subdivisions in a pro-
gram to prevent erosion, flood water and sediment damages
in watersheds.

In addition the Army Corps of Engineers, the Depart-
ment of the Interior, and Transportation all as a matter of
policy must deal with erosion and sedimentation. Accordingly
they must cooperate with state and local governmental units

to restrict and control erosion and sedimentation.

Michigan Regulations
On the state level, the Michigan Department of

Agriculture, the Michigan Department of Natural Resources,

 

4Ibid., pp. 51: 0241-0501.

17

and the Department of State Highways, as a matter of policy,
must cooperate with both federal and local units of govern-
ment to curb erosion and sedimentation. However, the
primary responsibility for this type of control lies at

the state level.

The tenth amendment to the United States Consti-
tution implies that the power to control natural resources
be intrusted to the states.

The power not delegated to the United States by the
Constitution nor prohibited by it to the States are
reserved to the States respectively, or to the peOple.

The Michigan Constitution reaffirms the U.S. Consti-
tution by stating in Article 4, Section 52:

The conservation and development of the natural re-
sources of the state are hereby declared to be of
paramount public concern in the interest of the
health, safety, and general welfare of the people.

The Legislature shall provide for the protection

of the air, water, and other natural resources of

the state from pollution, impairment, and destruction.

Thus Michigan has ample authority and responsibility
to establish regulatory controls restricting soil erosion
and sedimentation.

Upon review of existing statutes, there is no
specific regulations pertaining to erosion and sediment
control. The State Soil Conservation Committee, under the
provisions of Act 297 of the Public Acts of 1937, is estab-
lished in the Michigan Department of Agriculture. The

Committee has the function of "helping" local soil conser-

vation districts to organize, administer, and coordinate

18

their various programs. The local conservation districts
are also entities of state government, but their function
is likewise one of assisting, cooperating, and studying.
The Water Resource Commission in the Department of
Natural Resources has the responsibility of applying water
quality standards as specified by the Federal Water Quality
Act and the Michigan Water Resource Commission Act. The
Water Resource Commission adopted interstate water quality
standards on June 28, 1967, and adopted intrastate water
quality standards on January 4, 1968. Both of these
standards recognize "suspended collodial and settleable
materials" as a parameter of water quality--"No Objectionable
unatural turbidity, color, or deposit in quantities suf-
ficient to interfere with designated use."5
Section 6 of the Water Resource Commission Act,
Public Act No. 245 of 1929, as amended reads
It shall be unlawful for any person directly or
indirectly to discharge into the waters of the state
any substance which is or may become injurious to the
public health, safety, or welfare; or which is or may
become injurious to domestic, commercial, industrial,
agricultural, recreational, or other uses which are
being or may be made of such waters; or which is or
may become injurious to the value or utility of
riparian lands; or which is or may become injurious to

livestock, wild animals, birds, fish, aquatic life or
plants or the growth or propagation thereof be prevented

 

5Water Resource Commission, Dept. of Natural
Resources, State of Michigan, "Use Designation Areas for
Michigan's Intrastate Water Quality Standards," (March,
1969). P. 5.

19
or injuriously affected; or whereby the value of fish
and game is or may be destroyed or impaired.

Thus it seems that the Water Resource Commission
has at least the authority to monitor sediment pollution.

In April of 1971 a "Soil Erosion and Sediment Con-
trol Act" was introduced inthe Michigan House of Representa-
tives (substitute for House Bill-4709).7 The progress of
the Bill has been delayed for various reasons and currently
(June, 1972) it is in the Committee on Conservation and
Recreation. The preface of H.B.—4709 reads

A bill to provide for the control of soil erosion;

to protect the waters of the state from sedimentation;
to prescribe the function of a state program; to pro-
mote for the promulgation of rules; and to provide
remedies for violations.

H.B.-4709 also provides for statewide uniformity and
requires that local units of government enforce the adopted
rules and standards prescribed in the Bill.

A recent study conducted in Michigan concerning the
power and the functions of local government indicates a need
for structural reorganization. A need was found to exist
for developing and implementing a comprehensive plan for an
interrelated and interdependent system of local governments

involving counties, townships, villages, and cities. Such

reorganization is possible by strengthening the structure,

 

6Michigan Compiled Laws Annotated (St. Paul, Minn.,
West Publishing Co., Vol. 16, 1967), sec. 323.6.

7See Appendix D for a copy of House Bill 4709.

20

powers, and functions of local units of government, provided
clear policies related to intergovernmental relationships
are established.8
One of the recommendations contained in the published
portion of the above final study states, "It is recommended
that the State be organized into regional districts for all

planning and development activities."9

If such reorganiza-
tion does develOp, it may well provide an avenue for the
coordination of minimum erosion and sediment control guide-

lines.

Local Controls

 

The Federal government and the state of Michigan
have the authority and the capacity to offer guidelines and
assistance to local governmental units confronted with
erosion and sediment problems. However, the bulk of the
responsibility to control a problem of this type must come
from concerned citizens, professional conservationists,
businesses, and most importantly from local officials.

Decisions on how local resources are to be allocated and

 

8Subcommittee on Local Government Powers and Func-
tions, "Position Statement on Local Government Powers and
Functions: Third Report to the Governor's Special Commis-
sion on Local Government," (August 31, 1971), pp. 28-31.

9Governor's Commission on Local Government, Report
of the Governor's Special Commission on Local Government,
(March, 1972), p. 9.

 

21

used should incorporate local Opinion and legal authority

from the existing enabling laws.

Most types of local controls are implemented

through one of the following types of ordinances, codes,

regulations, or administrative rulings:

1.

A Zoning Ordinance which recognizes the physical

 

limitations of soils, topography, existing and

future land use plans;

A Subdivision Regulation designed to promote the
installation of adequate storm sewers and drainage

facilities by the orderly layout and use of land;

A Flood Plain Ordinance which limits the extent

 

and intensity of development in the designated

flood plain;

A Building or Housing Code which contains special

procedures for soil stability and drainage;

A Soil Erosion and Sediment Control Ordinance
separately adopted specifically to control non-

agricultural based erosion and sedimentation.10

In Michigan, enabling statutes exist for the creation

of regional, county, township, and municipal bodies. A local

 

10Powell, Winter, and Bodwitch, Community Action

Guidebook-for Soil Erosion and Sediment Control, pp. 7-12.

 

22

governmental body which contains any semblance to the
previous mentioned codes, regulations or ordinances has the
capacity to incorporate an erosion and sediment control
amendment or the capability to develop and adopt a separate
Ordinance.

It should be noted that when individual units of
local government sporadically adopt regulations to control
a problem of this type, certain areas are left without
adequate regulations. Areas void of adequate zoning, sub-
division, flood-plain, building and housing, or specific
erosion and sediment control regulations then tend to
attract developers because of the lack of adequate controls.

Existing Erosion and Sediment
Control Ordinances

 

 

The status of existing erosion and sediment control
ordinances is a difficult task to monitor on a statewide
basis. Lines of communication are often lacking or corroded
from non-use. However, Ordinances were found to exist at
the city, township, and county level.

In March of this year a questionnaire was mailed to
the seventy-one work unit offices of the Soil Conservation

11 The

Service in Michigan via the State Conservationist.
questionnaire asked for information concerning new or re-

Vised erosion and sediment control ordinances that have been

 

11See Appendix B for a copy of the questionnaire.

23

adOpted by local units of government. Also the questionnaire
asked for Ordinances that were in the various stages of
development. By the May lst deadline, sixty-three of the
work units replied.

All adOpted Ordinances that were indicated in the
questionnaire were obtained and reviewed to see if they were
consistent with the earlier definition of an erosion and
sediment control ordinance. Upon review, it was found that
seven Ordinances were in existence that met the requirements
of the earlier definition. These consisted of three county
Ordinances, three township Ordinances, and one city Ordi-
nance. In addition to the ordinances adopted, thirty-nine
Ordinances were indicated in the deve10pment stage. Of
these, nine were county Ordinances, twenty-seven were town-
ship Ordinances, and three were city Ordinances. (See
Table 1.)

The exact number of erosion and sediment control
ordinances is not the important measure to be stressed. It
has been established that at least seven local Ordinances
are in existence in Michigan and that several more are being
considered for adoption.

As implied earlier, not all of the Ordinances indicated
in the Soil Conservation Service questionnaire met the re-
quired definition of an erosion and sediment control ordi-
nance. The questionnaire indicated that fifteen townships

in Kalamazoo County had adopted such Ordinances. Upon

24

TABLE l.--Soi1 Erosion and Sediment Control Ordinances.

 

Adopted Ordinances

 

 

Governmental Dev.
Level Zoning Ord. Sub. Reg. Separate Ord. Stages
City 1 3
Township 1 2 27
County 2 1 9

 

examination it was revealed that the townships actually had
adopted a model subdivision control ordinance without any
specific mention or provision for erosion or sediment con-
trol. As such they were not credited to be erosion and
sediment control Ordinances.
Local Commissions, Ordinances,
Regulations, and Codes

Planning, zoning, subdivision, and building controls
are well within the related spectrum of methods for control-
ling erosion and sediment. Indeed, many of the existing
erosion and sediment controls are found within the frame-
work of existing codes and ordinances.

Before proceeding further it may be well to delineate
the difference between the functions of planning, zoning, and
subdivision controls. Planning can be defined as: "intelli-

gent forethought applied to the development of a community."12

 

12Soil Conservation Society of America, Planning and
Zoning for Better Resource Use, (No Date), P. 3.

25

Or in more general terms: "the process of preparing programs
or courses of action for accomplished land use objectives."l3
Zoning, on the other hand, "is a basic regulatory technique
to carry out the land use portion of a plan."14 Zoning is
the major police power employed to control land use. It
classifies and segregates the land according to its permitted
use. Subdivision controls also provide for the orderly use
of land, but their prime objective is somewhat more specific.
They tell the landowner what he can and cannot do in divid-
ing his land into lots and selling them for development.

In Michigan, planning commissions can be adopted on
the regional, county, township, or municipal level. Zoning
boards or commissions may be adOpted on the county, town-
ship, and municipal level. Likewise subdivision controls
may also be adopted on the county, township, and municipal
level. As a result of this array of organizational tools,
jurisdictional overlap exists which may cause fragmentation,
duplication, and competition between the various levels of

local government.15

 

13Frank P. Grad, "Land Use Planning," Environmental
Law (New York: Matthew Bender & Company, 1971), Ch. 8,

p. 17.

 

14Soil Conservation Society of America, Planning and
Zoning for Better Resource Use, p. 3.

 

15Office of Planning Coordination, Statewide Inven-
tory of Community and Area Planning in Michigan, Technical
Report A-332, (February, 1970).

 

26

In reference to the Statewide Inventory of Community

 

and Area Planning in Michigan, the following represent some

 

of the major findings listed in the study:

--A planning or zoning organization is found in all but

two counties of the state.

--More than half of the adopted zoning ordinances have
been initiated without an existing or future land use

plan as a guide.

--Of all the levels of local government, cities are most

heavily involved in the planning process.

Tables 2, 3, and 4 are illustrative of the status of
existing local commissions, ordinances, regulations, and
codes.

Table 3 indicates that the zoning ordinance is the
most commonly adopted type of land use control. On a pro-
portional basis, 44 per cent more of the cities have zoning
ordinances than townships. Accordingly, 42 per cent more of
the cities have subdivision regulations than do townships.

Upon comparison with adopted erosion and sediment
control ordinances, it is notable that only one city in
Michigan was found to have such an Ordinance. Upon com-
parison with the erosion and sediment control ordinances
indicated by the Soil Conservation Service questionnaire
to be in developmental stages, it is found that only three

city Ordinances were proposed. It seems that the major

27

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28

 

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30

incentive to adOpt erosion and sediment control ordinances

is on the township level rather than on the municipal level.

Private Action

 

The "environmental lawsuit, a private action
initiated against actual or potential polluters, may
prove to be an invaluable weapon in the fighg to re-
claim and preserve our natural environment.

Until recent years, the major avenue of judicial
action available to private individuals has been through the
common law remedies of trespass or nuisance. However, through
the adoption of certain Federal and Michigan statutes, an
individual is now granted standing on environmental issues.

On the federal level the Administrative Procedures Act

7

(A.P.A.),l along with recent court ruling, would grant stand-

ing to individuals or groups who do desire to challenge cer-

tain actions relating to erosion or sediment control.18

 

16David W. McMorrow, ed., "The Environmental Lawsuit:
Traditional Doctrines and Evolving Theories to Control Pol-
lution," Wayne Law Review, XVI, No. 3 (Summer, 1970), 1084-
1135.

 

17The Administrative Procedures Act, Public Law No.
89-544 80 Stat. 392 (1966), 5 U.S.C. Sec. 701, 702, 706,
(Supp. V, 1965-1969), in Grad, Environmental Law, Ch. 12,
p. 83.

 

18Court rulings upholding the A.P.A.: Flast v Cohen
392 U.S. 83 (1968); Scenic Hudson Preservation Conference v
Federal Power Commission 354 F 2nd 608 (2nd Cir. 1965);
Association of Data Processing Service Organization, Inc. v
Camp 397 U.S. 150 (1970); Wayne Law Review, XVI, No. 3
(Summer, 1970), 1084-1135.

 

31

In short, whenever any person feels that a federal
administrative agency has made a decision which does
not promote efforts to prevent or eliminate damage to
his legally protected interest in the environment he
may, as an "aggrieved" person under the authority of
Data Processing and the APA, bring an action in federal
courts t8 obtain judicial review of the administrative
action.1

 

Since all federal lands and projects are under the
direction of some federal agency, an individual may bring
suit against that agency if he can show that he has been
adversely affected or aggrieved within the meaning of a
relevant statute.

The National Environmental Policy Act of 1969
requires that,

. . . all agencies of the Federal Government shall
. . . identify and develop methods and procedures,
. . . which will insure that . . . environmental
amenities and values may be given appr0priate con-
sideration in decision making along with economic
and technical considerations;2

More specifically the National Environmental Policy
Act requires: (1) an environmental impact statement; (2) a
list of adverse environmental effects; (3) alternatives to
the proposed action; (4) local short-term and long-term
effects; and (5) any irreversible and irretrievable commit-
ments on the resources involved in every recommendation or

report on proposals for legislation and other federal

actions affecting the quality of the human environment.

 

19Wayne Law Review, XVI, No. 3, 1093-1094.

 

20Grad, "Environmental Litigation," Environmental
Law, Ch. 12, p. 131.

 

32

On the state level, Michigan has passed a similar
statute enabling private action concerning environmental
issues. The Environmental Protection Act, Public Act No.
127 of 1970, implies that any individual or governmental
unit may sue or be sued in relation to an environmental
issue.

The preface of the Act reads

An Act to provide for actions for declaratory and

equitable relief for protection of the air, water or
other natural resources and the public trust therein;
to prescribe the rights, duties and functions of the
attorney general, any political subdivision of the
state, any instrumentability or agency of the state
or of a political subdivision thereof, any person,
partnership, corporation, association, organization,
or other legal entity: and to provide for judicial
proceedings relative thereto.

Since the Act provides for the protection of the
environment, it is logical to assume that the Act would
apply to erosion and sediment damage. Thus a concerned
individual could then claim that his legal right to a
healthy and safe environment has been infringed upon by
eroding soil and resulting sedimentation.

Statutes are available at both the federal and state
level in Michigan which imply standing for judicial action
against erosion and sediment. However, there are several
limitations that apply to such environmental lawsuits.

The first limitation is the time factor. Damage

from exposed soil may result before the court has time to

 

21Grad, Environmental Law, "Environmental Protection
Act of 1970,‘I Ch. 12, p. 148.

 

33

hear the case. Accordingly, injunctive relief after the
act is of little benefit.

The second limitation is that of the burden-of-
proof. The plaintiff initially bears the burden-of-proof.
Often it is quite difficult to prove a probable environ-
mental harm. However, under Section (3) of the Michigan
Environmental Protection Act, the burden-of-proof is shifted
to the defendant if the plaintiff can show a prima facie
case that the defendant has caused or is likely to cause
pollution.

The third limitation is that of cost. Judicial
decisions are very expensive. Often private environmental
lawsuits involve the hiring of expert witnesses and highly
trained lawyers. However, individual costs can be sometimes

lessened by the class-action suits rather than private suits.

Summary

In the absence of statewide guidelines specifically
concerned with erosion and sediment control, the legal basis
for local regulations is the various enabling statutes
adopted by the state government of Michigan. With the
authority of enabling legislation, local governments can
attempt to regulate development activities to control water
runoff, erosion and resulting sedimentation.

In reference to the Water Quality Act of 1965,
Michigan has adopted both interstate and intrastate water

quality standards. As a result, sediment has been recognized

34

as a pollutant, and it is subject to the control of the
Water Resource Commission. Through the cooperation and
technical assistance offered by other branches of State and
Federal government, local governments have a fragmental
means available to adopt local erosion and sediment control
ordinances.

Private action to curb erosion and sedimentation
is also available in the form of environmental lawsuits.
Both federal and Michigan statutes make environmental
litigation possible; however, environmental lawsuits often
have limitations of time, the burden-of-proof, and high

costs.

CHAPTER III

PROBLEM EXAMINATION

To examine the regulatory nature and extent of
erosion and sediment controls in Michigan, the adequacy of
existing State Controls will be examined. A method of
developing a local erosion and sediment control program will
be examined. And, finally, existing erosion and sediment
control ordinances will be examined in relation to the

provisional standards which they contain.

State Controls

 

Michigan has at its disposal an array of statutes,
departments, and agencies aimed at monitoring and controlling
pollution. The question to be examined here is whether
Michigan needs additional controls at the state level of
government aimed specifically at erosion and sediment
control.

Act 17 of the Public Acts of 1921 vests in the
Department of Natural Resources the duty to protect and

preserve all the natural resources of the state.1 Soil

 

lMichigan Compiled Laws Annotated, XV, Ch. 29.

 

36

and water certainly qualify as natural resources, but there
is no provision in the Act for the control of suburban,
urban, or even rural based erosion.

The Water Resource Commission Act, Act 245 of the
Public Acts of 1929 as amended, establishes the existence
and function of the Water Resource Commission in the
Department of Natural Resources. Section (6) of the Act
states that it is unlawful for any person to discharge any
"substance" into the waters of the state that is capable of
causing "injuries."2 As such, Act 245 is primarily a water
quality act. It recognizes sediment as a pollutant, but
lacks the procedural adequacy for controlling sedimentation
problems. The Act is geared toward handling only a small
number of cases because of its procedural limitations.

Water pollution control enforcement procedures
beginning with the detection of occurring pollution,
through staff contact of the source of entity. Staff
contacts are made with the polluter seeking prompt
attention and early corrective action. Where emer-
gency conditions exist such as a suddenly developing
and continuing discharge of serious pollutants, im-
mediate control is requested. If failure to comply
promptly with such a request is encountered, in-
junctive or other emergency action is sought by the
Commission.

Where staff contacts do not produce satisfactory
prompt solutions and the problem seems amenable to
solution through reasonable voluntary effort, the
polluters may be called in for a conference.

If a conference is not held or if voluntary action
following a conference does not proceed fully and
timely, the Commission issues a Notice of Determina-
tion and Hearing to the polluters and not less than
four weeks nor more than eight weeks thereafter holds

 

2Michigan Compiled Laws Annotated, XVI, Sec. 323.6.

 

37

a hearing on the adoption of a proposed Final Order of
Determination, which specifies waste restrictions and
sets forth sequential performance dates concluding with
the completion of construction of the necessary facili-
ties and placing them in operation.

If the proposed Order is contested, the matter is
referred to an employed, qualified Hearing Commissioner
who hears the case. The Commissioner then reconvenes
its hearing and may adopt the Order proposed by the
Hearing Commission.

The recipient may within 15 days after issue, appeal
the Final Order of Determination to the Circuit Court.

A single case of pollution abatement must receive
the direct attention of the Water Resource Commission at
least twice, and more likely several times.

The Water Resource Commission, which is already
occupied with other cases of pollution control, does not
have the manpower and time to implement a statewide erosion
and sediment control program. Even if manpower, time and
funds permitted, the Commission is not in the position to
deal with over-land erosion and deposition that does not
enter the "waters of the state."

Act 297 of the Public Acts of 1937, the Soil Conser-
vation District Law, provides for the creation of local
districts as governmental subdivisions of the state.4 They
function with the aid of the Soil Conservation Committee,

which is a division in the Michigan Department of Agri-

culture, to provide technical assistance in erosion control

 

3Water Resource Commission, "Enforcement Procedures:
Michigan Water Resource Commission," (Lansing, Michigan,
April, 1971).

4Michigan Compiled Laws Annotated, XIV, Ch. 282.

38

and land use planning. Although the districts have the
power to sue or be sued, they lack enforcement powers which
are often necessary to stop erosion and sedimentation in
suburban and urban areas. Accordingly soil conservation
districts were traditionally agricultural oriented, and
have only recently dealt with suburban and urban problems.
Act 288 of the Public Acts of 1967, the Subdivisions
Control Act, requires a developer to submit c0pies of sub-
division plats for review to the various local and state
agencies that may have interest in its developmental effects.
A topographic map showing storm water drainage may be re-
quired, but the Act contains no specific provisions for
erosion and sediment control.5
Subdivision controls offer a possible avenue for
residential erosion and sediment control if they are adopted
on a coordinated basis and if they contain specific erosion
and sediment provisions.6 However, subdivision controls
apply only to land planned for residential development.
Thus furthering the fragmentation of regulatory controls.
The capacity for local units of government to

establish local control varies. As indicated earlier, not

 

5Legislative Service Bureau, State of Michigan Laws
Relating to Planning (Executive Office of the Governor,
LSB-P. No. 94, 1968), Sec. 560.102-.264.

 

6Such examples are Montgomery and Prince George's
County in Maryland. Maryland also contains statewide
erosion and sediment control legislation.

we. .M....\D...1\ aw.

39

all levels of local government contain zoning ordinances,
subdivision regulations, building codes or housing codes.
The variability of standards and implementation on a local
scale without specific statewide legislation leaves the

door open to fragmented and inadequate controls.

The Task Force Approach

 

The task force approach is a method of organizing a
local erosion and sediment control program. It typifies
the approach used in developing Ann Arbor's "Soil Erosion,
Sedimentation Control and Land Balance Ordinance" and
similar ordinances adopted in Maryland.7

The value of the task force approach lies in its
success in promoting a unified and realistic method of
controlling erosion and sediment while at the same time
encouraging orderly develOpment practices.

In organizing a task force, representatives of local
conservation agencies, citizen groups, developers, water
management organizations, and units of state and local gov-
ernment are involved in developing a program of control.8

By involving as many people as possible there is a lesser

chance of resistance between concerned individuals and

 

7Maryland-National Capital Park and Planning Com-
mission, Sediment Control Program, Montgomery County,
Maryland (March, 1967) and Sediment Control Program for
Prince George's County, Maryland (September, 1968).

8Powell, Winter, and Bodwitch, CommunitygActign
Guidebook for Soil Erosion and Sediment Control, pp. 7-9.

 

40

already existing agencies. Another reason for obtaining
involvement of diverse groups in the program is that the
manpower resources available to the program can be increased
by utilizing the personnel from the various existing groups.
For example, soil technicians are generally available from
local soil conservation districts, hydrologists are avail-
able through the Water Resource Commission, and professional
engineers are generally available through local planning or
building organizations.

The "Community Action Guidebook for Soil Erosion
and Sediment Control" lists five stages in the development

of a soil erosion and sediment control program:

1. Formal recognition by local elected officials of the

need for erosion and sediment control;

Formal recognition accomplishes two objectives:
first, it represents an official statement that erosion and
sediment problems exist, and, secondly, it establishes the
position of "public interest" in favor of erosion and sedi-

ment control.
2. Formulation of administrative and legal controls;

The formation of administrative and legal controls
is often a timely process. If statewide regulations are in
existence, the time to channel authority may be shorter than
if specific legislation were non-existent. Accordingly, as

in the development of Ann Arbor's Ordinance, it may prove

41

helpful to have the program Operate on a voluntary basis in
order that the various parties can make the appropriate
adjustments. After the program has been carried on in a
trial basis it may then be desirable to structure the legal

control and administration in the form of an ordinance.

3. Assignment of specific responsibilities to local

agencies;

The assignment of responsibilities will vary from
one area to the next depending on the existing agencies and
governmental units in a specific area. Generally the local
planning commission and the local soil conservation district

are involved as well as other entities of local government.

4. Provisions for on-site inspection and maintenance

of control devices;

On-site inspection and maintenance is an important
function of local government. Inspection and maintenance
insures that erosion and sediment control measures specified
in approved project plans are properly installed and main-

tained.
5. Program evaluation.

Program evaluation is a final phase that is all too
often overlooked. Periodic updating and improvement of
local regulations are necessary to meet the changing soil,

water, and human needs in a suburban or urban area.

 

91bid., pp. 8-12.

42

The task force approach represents only one alterna-
tive to local governmental units contemplating the adoption
of erosion and sediment control. Such controls are usually
in the form of local ordinances, codes or regulations.
Following is an examination of the existing erosion and
sediment control ordinances in Michigan.

An Erosionand Sediment Control
Ordinance Index

 

There are four major vertical levels of governmental
organization in which ordinances may be adopted in Michigan.
Within these four levels of government, Ordinances may be
adopted either separately or as an amendment to existing

local regulations as illustrated in Figure 3.

 

(General Guidelines) FEDERAL ------------ I

I

I

(Enabling Statutes) STATE -------------- :

L ________________________ .4._ _ _ _

I

REGIONAL ----------- g

I
(Zoning Ordinances, : 8
Subdivision Regu- COUNTY ------------- :ffl
lations, Building : 8
and Housing Codes) I H
TOWNSHIP ----------- g 3
I c
i H

CITY & VILLAGE ----- i

 

 

Figure 3.--Governmental Levels at Which Local Ordinances
May Be Adopted.

 

43

Due to the many levels Of government and the various
types of conjunctive regulations into which erosion and
sediment control ordinances may be incorporated, analysis or
examination becomes subjective in nature.

The majority of erosion and sediment control ordi-
nances in Michigan have been in existence less than one year.
In all instances such ordinances have been in existence less
than thirty months. To make a complete field evaluation Of
the effectiveness of such ordinances would be misleading
because of their short operative life. Accordingly, such a
procedure would be beyond the scope or purpose of this study.

Instead, the following examination, conclusions and
recommendations will be based on an exploratory inquiry into
the face value of existing Ordinances and on the alternative
modes of control discussed earlier. A general index was
designed and applied to existing Ordinances. The underlying

assumptions, standards, and the Index are described below.

'Criteria and Assumptions

 

The various standards within the Index were arrived
at by drawing upon relevant literature, by discussion with
technical and professional personnel confronted with
implementing existing Ordinances, and by examining the
content Of existing Ordinances adopted by the various levels

of government.

44

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45
The following assumptions are incorporated into the
Index.

1. All Ordinances were reviewed in the context in which
the particular ordinance was adopted (i.e., a zoning

ordinance, subdivision regulation, etc.),

2. All Ordinances were reviewed assuming complete

legality and constitutionality,

3. All Ordinances were reviewed assuming complete

implementation.

Standards

 

The definitions, criteria, and ratings for the stan-

dards used in the Index are given below.

1. Permit Requirement:

Definition--A form of authorization usually given in
the form Of a license to do grading, stripping,
cutting, or filling which is issued by the designated

Official.

Criteria--A permit necessitates an application and a
review procedure for a proposed development. Gener-
ally this requires the gathering Of preliminary in-
formation concerning the site and compells the pro-
prietor to comply with the Ordinance. For example,
Article III Section D of the "Ostego County Soil

Erosion and Sediment Control Ordinance and Regulations"

46

requires that

Except as exempted by Article V, no person
shall do any grading, stripping, cutting or
filling unless he had valid grading permit
issued by the Zoning Administration.

A separate application shall be required for
each grading permit. Plans, specifications and
timing schedules shall be submitted with each
application for a grading permit. The plans
shall be prepared or approved and signed by a
professional engineer or by an architect. The
Zoning Administrator may waive the preparation
or approval and signature by the professional
engineer or architect when the work entails no
hazard to the adjacent property.

The "Scio Township Subdivision Ordinance" requires
authorization in the form of a preliminary plat

which must be prepared and approved before develOpment
starts. Through both methods of recourse the require-

ment under the above definition is satisfied.

Ratings--If authorizations or a permit is required,
the standard was rated (+) plus. If approval was
"encouraged" or implied, it was rated (0) zero. Ac-
cordingly, if the Ordinance contained no provision
for authorization or a permit, it was rated (-)

minus.

Penalties for Violation:

Definition--A violation occurs when the performance
of any act is required or prohibited under the pro-
vision of an Ordinance and the proprietor fails to

comply with such a provision.

47

Definition--A penalty occurs when the proprietor has
some form of restriction or punishment imposed upon

him for a violation.

Criteria--The provisions for violation and penalties
strengthen any Ordinance. However, the nature and
extent of penalties contained varies from one Ordi-
nance to the next. Penalties may include (1) a
monetary fine or imprisonment; (2) a work order or
stop work order; (3) a refusal to issue a Certificate
of Occupancy; and/or (4) the authority to execute a

bond as part of a penalty.

Ratings--An Ordinance which contains three or more of
the above four possible penalties was rated (+) plus.
If the Ordinance contained less than three, but at
least one of the above penalties, it was rated (0)

zero. Otherwise, the Ordinance was rated (-) minus.

On-Site Inspection During Construction:

Definition--An inspection made by a designated
official during construction with specific interest
in checking measures used to minimize erosion and

sedimentation.

Criteria--The majority of erosion resulting from con-
struction occurs during the construction period. In-
spection provides the assurance that on-site activi-

ties are proceeding in compliance with approved plans

48

and regulations within the Ordinance. Article VI,
Section A, of Cheboygan's "Soil Erosion and Sediment
Control Amendment" to the County Zoning Ordinance
reads
The requirements of this article shall be
enforced by the Zoning Administrator who shall
inspect or require adequate inspection of the
work. If the Zoning Administrator finds any
existing conditions not as stated in any appli-

cation, grading permit, or approved plan, he
may refuse to approve further work.

Ratings--If the Ordinance "specifically" states that
on-site inspection will be made during the construc-
tion period it was rated (+) plus. If the Ordinance
implied inspection during the construction period,
it was rated (0) zero. Where no provision or indi-
cation of inspection was listed, the Ordinance was

rated (-) minus.

On-Site Inspection Upon Completion:

Definition--An inspection made by a designated
official upon the completion of construction with
specific interest in checking to see if measures used
to minimize erosion and sedimentation are in compli-

ance with the Ordinance.

Criteria--Inspection of the site after completion of
all construction is required in most instances before
a Certificate-of-Occupancy is issued. This provides

an Opportunity for the inspector to check if the

49

proprietor has complied with the various provisions

of the Ordinance.

Ratings--An ordinance which specifies such an
inspection was rated (+) plus. An ordinance which
implies inspection upon completion was rated (0)
zero. Accordingly, an Ordinance which contains no
provision for inspection upon completion was rated
(-) minus.

Maintenance Requirement:

Definition--Maintenance provides for the compliance
Of erosion and sediment control measures by the
proprietor, subsequent owners, or units of local

government after construction is complete.

Criteria--Maintenance implies that all permanent
erosion control measures, devices, and plantings
will be kept in effective working conditions.
Maintenance requirement may be made a part of the
general maintenance operations of local government,
utilizing existing agencies and personal, or main-

tenance may be the requirement of subsequent owners.

Ratings--Ordinances were rated (+) plus if they
contained a maintenance provision, (0) zero if they
implied maintenance, and (-) minus if no mention was
made to the maintenance of erosion and sediment

control devices.

50

Fee and Technical Knowledge:

Definition--A fee is a charge placed upon a pro-
prietor when he applies for authorization for

construction.

Definition--Technical knowledge refers to the ability
and technical assistance the regulatory body and pro-
prietor have or receive from professionals who deal

with the physical problems of soil and water.

Criteria--A fee helps to compensate the cost of
review, inspection, and enforcement of the provisions
of the Ordinance. Inadequate funding is Often the
cause for less than optimum implementation of the
authority contained in the Ordinance. Likewise,
without adequate training or technical assistance,
the ability to recognize the physical problems con-
cerning erosion and sedimentation may be beyond the

knowledge of designated inspectors.

Rating--An Ordinance which contains provisions for
both fees and technical knowledge was rated (+) plus.
An Ordinance was rated (0) zero if it failed to con-
tain either a provision for fees or technical assist-
ance. Accordingly, an Ordinance was rated (-) minus
if it failed to provide provisions for technical

training or assistance.

51

Bond Requirement:

Definition--A security deposit given by the pro-
prietor of the site which is held by the regulatory
unit in charge. A bond may be in the form of cash
or it may be an instrument of credit approved by

the regulatory body.

Criteria--A security bond provides for the protection
of all exposed soil surfaces should the proprietor
decide to delay or stop development. A bond also
serves as a source of insurance that the proprietor
will comply with the other provisions of the Ordi-

nance o

Rating--If an Ordinance contained a provision for
bonds, it was rated (+) plus; otherwise, it was
rated (-) minus. In the case where the bond require-

ment was optional the standard was rated (0) zero.

Coordination:

Definition--Compliance with some form of regional or

statewide supervision.

Criteria--Coordination of local controls is necessary
if erosion and sedimentation are to be stopped on an

area wide basis.

Rating--Since Michigan lacks statewide or regional

erosion and sedimentation regulations, no Ordinance

52

was rated (+) plus. If the Ordinance was adopted
on the county or township level it was rated (0)
zero. If the Ordinance was adopted on the municipal
level, it was rated (-) minus. If and when minimum
regional or statewide erosion and sediment standards
are adopted, local ordinances will then have to co-

ordinate their efforts to comply with such standards.

Although above standards 1 and 8 are not considered
necessary for the individual units of control, they may be
highly advantageous in solving regulatory erosion and sedi-
ment problems. A bond requirement provides incentive and
acts as an insurance policy for compliance with regulatory
provisions. Likewise, areawide coordination helps to put a
.handle on the physical aspects of sedimentation. Sediment
which causes problems in a local jurisdiction may have

originated from a different area.

Review

Upon examination of the Index several trends seem
to be indicated. All Ordinances contain provisions for
permit requirements and for penalties for violation. On-site
inspection upon completion and maintenance requirement pro-
visions existed in every case except one. Regional coordi-
nation was lacking because Of the lack of statewide guide-
lines. Provisions for bonds in the Ordinances examined

seemed to be at the discretion of the particular regulatory

unit.

53

Likewise, the requirements for fees and technical

knowledge seemed to be at the descretion of the adopting

units.

Although on—site inspection during construction was

not specified in every case it may nevertheless be carried

out to a certain extent. Such provisions are Often difficult

to access at face value.

In addition to the standards contained in the Index,

several other features existed in the Ordinances examined

that deserve mentioning.

1.

All Ordinances contained a section for the definition
Of terms. Although this may seem somewhat trivial

at first, it clearly delineates and identifies the
provisions within the Ordinance and the persons

required to implement it.

All Ordinances contained a listing of specific data
required by the review board or agency before

approval was granted to start construction.

Except for subdivision regulations, Ordinances did
not contain provisions for the meeting of any
minimum size standards. Subdivision regulations
apply only to sites that meet the local definition
of a subdivision. Generally all "sites" were

included that were within an Ordinance's jurisdiction.

CHAPTER IV

CONCLUSIONS AND RECOMMENDATIONS

The nature of regulatory controls applicable to
regulate erosion and sedimentation in Michigan vary con-
siderably. Michigan and federal statutes recognize sediment
as a water pollutant, but fail to provide standards for
regulating and monitoring erosion. Sediment is monitored to
a limited extent by the water quality parameters adopted by
the Water Resource Commission, but overland erosion and its
deposition are left unchecked. Generally, local Ordinances
are sporadic in existence, inconsistent in context, and
lack regional or statewide minimum standards.

The following conclusions and recommendations are

based on the findings of this study.

Conclusions

 

1. Michigan lacks adequate legislation to regulate the
control of erosion and sedimentation as identified

in this study.

2. The Water Resource Commission presently is incapable

Of handling the large number of problems related to

54

55

erosion and sedimentation under its present water

quality standards.

There is an awareness movement on the part Of local
units of government concerning the need for adequate

erosion and sediment controls.

Generally there are an adequate number Of local
governmental units in existence to which erosion and

sediment control regulation can be channeled.

Local soil conservation districts lack adequate
authority to enforce recommended conservation

practices.

Existing Ordinances vary in the context in which
they were adopted. Ordinances exist separately, or
they exist as amendments to zoning or subdivision

regulations.
A bond requirement helps to strengthen an Ordinance.

Provisions for the assessment of fees aid the pro-
cedural requirements of review, inspection, and

enforcement.

Adequate statutory laws exist for individuals or
groups to receive standing in a court Of law if they
can show a reasonable possibility of potential or

actual harm.

56

Recommendations

 

The purpose of organizing a program for erosion and

sediment control is to provide for a consistent, compre-

hensive, and effective method Of controlling erosion and

sediment while at the same time causing as little disruption

as possible to normal development practices.

1.

H.B.-4709 takes a giant step in the direction of
providing a "unified soil erosion and sedimentation
control Program." It is recommended that such a
type Of bill be adopted and implemented as soon

as possible.

Since the H.B.-4709 is sponsored jointly by the
Michigan Department of Agriculture and the Water
Resource Commission, it is recommended that H.B.-4709
be amended to give local soil conservation district
the authority to issue a temporary stop work order
at their own discretion until the local unit of
government or the Water Resource Commission has the
time to take the needed action. It is also recom-
mended that local units Of government be made to
comply with the minimum specifications Of the local
soil conservation districts until such a time when
regional or statewide standards exist. Likewise,
more emphasis needs to be given to all the rami-

fications of soil erosion and its deposition,

57

thereby not restricting erosion and sediment controls
under the category of a water pollutant.

Accordingly, it is suggested that the procedures
contained in Section 7 of the Water Resource Commis-
sion Act be modified to deal more rapidly with cases

concerning sediment pollution.

It is recommended that local units of government
implement temporary controls aimed at the control Of
urban and suburban erosion. The temporary controls
should include the first seven standards listed in
the previously designed Index. After the temporary
controls have existed in a trial or voluntary period,
they should then be incorporated into a separate or
existing permanent ordinance. However, it may be
desirable to delay permanent action until Michigan

adOpts minimum guidelines.

All units of local government should submit a copy
of local land use plans, zoning ordinances, sub-
division regulations, building codes and the like,
to a statewide agency for review, thereby creating
a state depository or library for this type of
information. Statewide coordination can be accom-
plished only if existing local standards are known

to regional agencies.

BIBLIOGRAPHY

BIBLIOGRAPHY

Albee Township Board of Commissioners. "Albee Township
Zoning Ordinance." Saginaw County, Michigan, 1971.

Billing, Norman. "Sediment Control Legislation." Paper
presented at the Governor's Conference on Water
Sediment Pollution, Lansing, Michigan, March 11, 1969.

Cheboygan County Zoning Commission. "Cheboygan County Zoning
Ordinance: Soil Erosion and Sediment Control
Amendment." 1972.

City Of Ann Arbor. "Soil Erosion, Sedimentation Control and
Land Balance Ordinance." March, 1970.

Collins, Stephen E. "The Local Government's Role in Sediment
Control." Division of Research and Standards,
Baltimore County, Maryland, June, 1970.

Extension Land Use Education Committee. Land Use in Michigan.
Extension Bulletin NO. 610, Natural Resource Series.
East Lansing: Cooperative Extension Service,
Michigan State University, January, 1969.

 

Grad, Frank P. Environmental Law: Sources and Problems.
Matthew Bender & Company, Inc., 1972.

 

Halstead, Robert G. "Urban Sediment Control in Action."
Paper presented at the Annual Meeting Of the Soil
Conservation Society of America in Columbus, Ohio,
August 17, 1971.

Joint Committee on Water Resource Planning. State of
Michigan, Laws Relating to Water. Lansing, Michigan:
Legislative Service Bureau, 1966.

 

Maryland - National Capital Park and Planning Commission.
"Sediment Control Program, Montgomery County,
Maryland," March, 1967.

Maryland - National Capital Park and Planning Commission.

"Sediment Control Program for Prince George's County,
Maryland." September, 1968.

58

59

Mason County Zoning Commission. "Mason County Zoning
Ordinance: A Land Use Ordinance for Mason County."
December, 1971.

McMorrow, David W., ed. "The Environmental Lawsuit:
Traditional Doctrines and Evolving Theories to
Control Pollution." Wayne Law Review, XVI, No. 3
(Summer, 1970), Wayne State University, Detroit,
Michigan.

 

Michigan, House of Representatives, "Substitute for House
Bill No. 4709: Soil Erosion and Sedimentation
Control Act of 1972." Introduced April 1, 1971, by
Representatives Copeland, Goemaere, Smit, et a1.

Michigan. Michigan Compiled Laws, Annotated. (West, 1967).

 

Michigan. Michigan Statutes, Annotated. (Callahan and
Company, 1958).

 

Office of Planning Coordination. Laws Relating to Planning.
Lansing, Michigan: Legislative Service Bureau, 1968.

 

Office of Planning Coordination. Statewide Inventory of
Community and Area Planning in Michigan. TechniCal
Report A-332, February, 1970.

 

Oregon Township. "Oregon Township Zoning and Building
Ordinance." Lapeer County, Michigan, 1972.

Ostego County Board of Commissioners. "Ostego County Soil
Erosion and Sediment Control Ordinance and Regu-
lations." 1971.

Powell, Mel D.; Winter, William C.; and Bodwitch, William P.
'Community Action Guidebook for Soil Erosion and
Sediment Control. National Association of Counties
Research Foundation, 1970.

 

Ringler, Terry A., and Humphrys, C. R. Soil Erosion in an
Urbanizing Watershed. Research Report 133, Natural
Resources, Michigan State University, March, 1971.

 

Schmidt, J. H., and Summers, A. W. "The Effect of Urbani-
zation on Sedimentation in the Clinton River Basin."
University of Michigan, 1967.

Scio Township. "Scio Township Subdivision Ordinance."
Washtenaw County, Michigan, 1971.

Soil Conservation Society of America. Planning and Zoning
for Better Land Use. (No date)

 

60

State of Michigan. "Governor's Special Commission on Land
Use Report--Appendix A." January, 1972.

State Soil Conservation Committee, Michigan Department of
Agriculture. "Michigan Soil Conservation Districts-
Conservation - Self Government." June, 1971.

U. S. Department of Agriculture--Soil Conservation Service.
Multiple-Purpose Watershed Projects. Public Law
566, U.S. Government Printing Office, 1970.

 

Water Resource Commission, Michigan Department of Natural
Resources. "Enforcement Procedures: Michigan Water
Resources Commission." Lansing, Michigan, April,
1971.

APPENDICES

APPENDIX A

APPENDIX A

GLOSSARY OF TERMS

CERTIFICATION. A signed statement that specific con-
structions, or tests that were required have been

completed to comply with the requirements of adOpted
regulations.

CONSTRUCTION. The process of developing and building;
including grading, stripping, cutting, or filling.

DEVELOPMENT. The material change in use or appearance of
any parcel Of land. The act Of building structures
and installing site improvement.

GOVERNMENTAL AGENCY. Means any department, commission,
independent agency, or instrumentality of the United
States and of the State of Michigan, and any county,
city, township, village, or other governmental unit.

LAND USE. Means a use of land which may result in an earth
change and which may result in or contribute to soil
erosion and sedimentation, including but not limited
to a subdivision and other residential development,
an industrial and commercial develOpment, private
and public highway and local road and street con-
struction, drainage ditch construction, logging
Operations, agricultural practices and mining.

LOCAL AGENCY. Any instrumentality of regional, county,
township, city, or village government.

PLAT. A map or chart of a subdivision Of land.2

PROPRIETOR. Any person or combination of persons, including
a government agency undertaking any development.
The term Proprietor includes such commonly used2
references as subdivider, developer, and owner.

61

62

SEDIMENT. Means solid particulate matter, mineral or organic,
that has been deposited in water, is in suspension in
water, is being transported, or has been moved from
its site of origin by the process of soil erosion.

SOIL EROSION. The wearing away Of land surface by action of
wind, water, gravity or a combination thereof.

URBANIZATION. The characteristic of becoming more city-like
and less urban.

lMichigan Soil Conservation Service, "Model for
Developing Soil Erosion and Sediment Control Ordinance and
Regulations," (1970).

2Washtenaw County Metropolitan Planning Commission,
Model Subdivision Regplation Ordinance (Ann Arbor, Michigan,
1970), pp. 4-9.

3Michigan House of Representatives, House Bill
No. 4709.

APPENDIX B

63

SOIL CONSERVATION SERVICE
QUESTIONNAIRE

UNITED STATES DEPARTMENT OF AGRICULTURE
SOIL CONSERVATION SERVICE
Room 101, 1405 South Harrison Road
East Lansing, Michigan 48823
March 27, 1972

ADVISORY INTERA - MI - 2

To: Area and District Conservationists
Fr: Arthur H. Cratty, State Conservationist

Re: INTERA-l6 States, Counties, etc.

Action required by Mayil, 1972

 

We are interested in obtaining a state listing of the new or
revised erosion and sediment control ordinances that have been
adopted by units of government, and those that presently are
in the development stage.

Please complete the following questionnaire and return to
Palmer G. Skalland through channels.

Work Unit

 

Name of the Approximate Date Ordinances in the
unit of government Ordinances Adopted Development Stage

 

 

 

64

Results of
Soil Conservation Service

Questionnaire

 

Adopted Ordinances Development Stages
Work Units County Township City CountyiTownship City

 

Area 1:
Chatham 1
Crystal Falls
Escanaba
Houghton 1 1
Kingsford
Manistique - - - - - -
Marquette - - - - - -
Ontonagon
Saul Ste Marie - - - - - -
Stephenson - - - - - -

Area 2:
Bellaire
Beulah l
Boyne City 1
Cadillac
Kalkaska
Lake Leelanau
Onekama
Reed City
Scottville l
Traverse City

Area 3:
Alpena 2 12
Cheboygan 1
East Tawas l
Gaylord 1
Gladwin - - - - - -
Harrison - - - - - -
Harrisville
Rogers City
Roscommon
Standish - - - - - -
West Branch

l—l

I...I

Area 4:
Allegan
Big Rapids
CaSSOplis
Centerville
Fremont 1
Grand Haven

 

 

 

Work Units

65

 

Adopted Ordinances
County Township City

Development Stages
County Township City

 

Grand Rapids
Hastings
Ionia
Kalamazoo
Muskegon
Paw Paw

St. Joseph
Stanton

Area 5:
Bad Axe
Bay City
Caro
Corunna
Ithaca
Lapeer
Midland
Mt. Morris
Mt. Pleasant
Port Huron
Saginaw
Sandusky
St. Johns

Area 6:
Adrain
Ann Arbor
Charlotte
COldwater
Hillsdale
Howell
Jackson
Mason
Marshall
Monroe
Mt. Clemens
Pontiac
Wayne

*15

1

 

Total

 

 

 

*Lacked definitional requirements of an erosion and sediment
control ordinance.

(-) WOrk units that failed to answer questionnaire.

NO.

66
Key to Ordinance Numbers+

Name

 

"Cheboygan County Zoning Ordinance."
"Mason County Zoning Ordinance."

"Otsego County Soil Erosion and Sediment Control
Ordinance and Regulations."

"Albee Township Zoning Ordinance," (Saginaw County)

"Oregon Township Zoning and Building Ordinance,"
(Lapeer County)

"Scio Township Subdivision Ordinance,‘ (Washtenaw

County)

"Ann Arbor's Soil Erosion, Sedimentation Control and
Land Balance Ordinance," (City of Ann Arbor,
Michigan)

"Kalamazoo Model Subdivision Control Ordinance"

+As used in the designed Index.

APPENDIX C

An Ordinance to establish rules and regulations for controlling

67

MODEL FOR
DEVELOPING SOIL EROSION AND SEDIMENT
CONTROL ORDINANCE AND REGULATIONS

soil erosion and sedimentation within all development in the

 

 

County of .
The (Jurisdiction) County, Michigan
Ordains:

ARTICLE I

TITLE AND PURPOSE

TITLE

This Ordinance will be known as the " County

 

Soil Erosion and Sediment Control Ordinance."

PURPOSE

Excessive quantities of soil are eroding from areas that
are undergoing development for non-agricultural uses such
as housing developments, industrial sites, roads, recrea-
tion and wildlife areas. This soil erosion makes neces-
sary costly repairs to gullys, washed out fills, roads,
and embankments. The resulting sediment clogs storm
sewers and road ditches, muddies streams and silts lakes,
rivers and reservoirs. Sediment is expensive to remove
and limits the use of water for most beneficial purposes.

Sediment choked streams are unsightly and their reduced

68

channel capacity can result in flooding and associated
damages, including the threat to public health and safety.
The purpose of this ordinance is to control soil erosion
and the resulting sedimentation from occuring on develop-
ing areas by requiring proper provisions for water
disposal and the protection of soil surfaces during and
after construction in order to promote the safety, public
health, convenience and general welfare of the Community.

ARTICLE II
DEFINITIONS

RULES APPLYING TO TEXT

 

For the purpose of this Ordinance certain rules of
construction apply to the text as follows:

1. Words used in the present tense include the
future tense; and the singular includes the
plural, unless the context clearly indicates
the contrary.

2. The term "shall" is always mandatory and not
discretionary; the word "may" is permissive.

3. The word or term not interpreted or defined by
article shall be used with a meaning Of common

or standard utilization.

69

DEFINITIONS

 

The following definitions shall apply in the interpretation

and enforcement Of this Ordinance, unless otherwise

specifically stated:

1.

Certification: A signed, written statement by the

 

(Designated Official) that specific constructions,
inspections or tests where required have been
performed and that such comply with the applicable
requirements of this Ordinance or regulations
adopted.

Egg: Portion of land surface or area from which
earth has been removed or will be removed by
excavation; the depth below original ground
surface to excavated surface.

Debris Basin: A barrier or dam built across a

 

waterway or at other suitable locations to retain
rock, sand, gravel, or silt or other material.

Diversion: A channel with or without a supporting

 

ridge on the lower side constructed across or at
the bottom of a slope.

Embankment: A man-made deposit of soil, rock or

 

other materials.
Erosion: The wearing away of the land surface by
the action Of wind, water or gravity.

Excavation: See Cut.

 

10.

11.

12.

13.

14.

15.

70

Existing Grade: The vertical location of the

 

existing ground surface prior to cutting or
filling.
Fill: See Embankment.

Finished Grade: The final grade or elevation of

 

the ground surface conforming to the proposed
design.

Grading: Any stripping, cutting, filling,
stockpiling, or any combination thereof and
shall include the land in its cut or filled
condition.

Grading Permit: A permit issued to authorize

 

work to be performed under this Ordinance.

Grassed Waterway:l A natural or constructed

 

waterway, usually broad and shallow, covered
with erosion-resistant grasses, used to conduct
surface water from a field, diversion or other
site feature.

Mulching: The application of plant or other
suitable materials on the soil surface to
conserve moisture, hold soil in place, and aid
in establishing plant cover.

Natural Ground Surface: The ground surface in

 

its original state before any grading, excavation

or filling.

16.

17.

18.

19.

20.

21.

22.’

23.

71

Permittee: Any person to whom a permit is

 

issued in accordance with this Ordinance.

Professional Engineer: An engineer duly

 

registered or otherwise authorized by the State
Of Michigan to practice in the field of civil
engineering.

Regulated Grading: Any grading performed with

 

the approval Of and in accordance with criteria
established by the (Designated Official).
Sediment: Solid material, both mineral and
organic, that is in suspension, is being trans-
ported, or has been moved from its site of
origin by air, water, or gravity as a product
of erosion.

Sediment Basin: See Debris Basin.

 

Sediment Pool: The reservoir Space allotted to
the accumulation of submerged sediment during
the life of the structure.

glgpg; Degree of deviation of a surface from
the horizontal usually expressed in percent or
degree.

§2113 All unconsolidated mineral and organic
material of whatever origin that overlies

bedrock which can be readily excavated.

24.

25.

26.

28.

29.

30.‘

31.

72

Soil Engineer: A professional engineer who is

 

qualified by education and experience to practice
applied soil mechanics and foundation engineering.
Site; Any plot or parcel of land or combination
of contiguous lots or parcels Of land where
grading is performed or permitted.

Stripping: Any activity which removes or

 

significantly disturbs the vegetative surface
cover including clearing and grubbing Operations.
Structural Rock Fills: Fills constructed
predominantly Of rock materials for the purpose
of supporting structures.

Temporary Protection: Stabilizations of erosive

 

or sediment producing areas.

Vegetative Protection: Stabilizations of erosive

 

or sediment producting areas by covering the
soil with:
a. Permanent seeding, producing long-term
vegetative cover,
b. Short-Term seeding producing temporary
vegetative cover, or
c. Sodding, producing areas covered with a
turf of perennial sod-forming grass.

watercourse: Any natural or artificial water-

 

course, stream, river, creek, ditch, channel,

canal, conduit, culvert, drain, waterway, gully,

32.

33.

34.

35.

36.

37.

73

ravine or wash in which water flows in a definite
direction or course, either continuously or
intermittently, and which has a definite channel,
bed and banks, and shall include any area
adjacent thereto subject to inundation by reason
of overflow or flood water.

County Drain Commissioner: The ( ) County

 

Drain Commissioner.

County Health Department: The ( ) County

 

Health Department.

County Planning Commission: The ( ) County

 

MetrOpolitan Planning Commission.

 

County Plat Board: The (. ) County Plat
Board.
County Road Commission: The ( ) County

 

Road Commission.

Government Agency: Means any department,
commission, independent agency, or instrumentality
of the United States and of the State of Michigan,
and any county, city, township, village, authority

district, or other governmental unit.

74

ARTICLE III
APPLICATION PROCEDURE

INITIAL

The developer is encouraged to consult the general
development plans and detailed plans of any unit of
government that effect the tract to be developed and
the area surrounding it before he submits a preliminary
plat for review. He should also become acquainted with
the zoning ordinance, standards and requirements, this
ordinance, and other ordinances which regulate the
development of land in the County. He should also

discuss the concepts of the proposed development with

 

 

the ( ) Planning Commission and with the staff
of the ( ) Metropolitan Planning Commission.
COMPLIANCE

 

No site plan or plat shall be approved unless it
includes soil erosion and sediment control measures

in accordance with the technical standards of the local
Soil Conservation District. No approval for occupancy
of any building will be granted unless all needed
erosion control measures have been completed or sub-
stantially provided for in accordance with this
ordinance and the standards and specifications of the
local Soil Conservation District. The developer shall
bear the final responsibility for the installation and

construction of all required erosion control measures

75

according to the provisions of this ordinance and to the

standards and specifications of the local Soil Conservation

District.

DATA REQU IRED

 

The developer must submit the following information for

the entire tract of land, whether or not the tract will

be develOped in stages:

1.

6.

A boundary line survey of the site on which the
work is to be performed.

Description of the features, existing and
proposed, surrounding the site of importance to
the proposed development.

Description of general topographic and general
soil conditions on the site (available from

the ( ) Planning Commission or the

 

Soil Conservation District.

Location and description of existing and future
man-made features of importance to the proposed
develOpment.

Plans and Specifications Of soil erosion and
sedimentation control measures in accordance
with standards and specifications of the Soil
Conservation District.

A timing schedule indicating the anticipated

starting and completion dates of the development

D.

PERMITS

1.

76

sequence and the time of exposure of each area
prior to the completion of effective erosion

and sediment control measures.

Requirement: Except as exempted by Article V,

 

no person shall do any grading, stripping,
cutting or filling unless he has valid grading
permit issued by the (Designated Official).

Application: A separate application shall be

 

required for each grading permit. Plans,
specifications and timing schedules shall be
submitted with each application for a grading
permit. The plans shall be prepared or approved
and signed by a professional engineer or by an
architect. The (Designated Official) may waive
the preparation or approval and signature by

the professional engineer or architect when

the work entails no hazard to the adjacent

prOperty.

ARTICLE IV
PRINCIPLES AND STANDARDS

IMPLEMENTATION

 

Since considerable soil erosion can take place during

construction, development plans shall contain proposed

erosion and sediment control measures. These measures

77

shall be incorporated into the final plat and final
construction drawings. Erosion and sediment control
measures shall conform to the standards and specifi-

cations established by the ( ) Soil Conservation

 

District. The measures shall apply to all features of
the construction site, including street and utility
installations as well as to the protection of individual
lots. Measures shall also be instituted to prevent or
control erosion and sedimentation during the various
stages of development.

GENERAL DESIGN PRINC IPLES

 

Practical combinations Of the following general principles
will provide effective sediment control when properly
planned and applied:

1. The develOpment plan shall be fitted to the
tOpography and soils so as to create the least
erosion potential.

2. Permanent vegetation and improvements such as
streets, storm sewers or other features of the
development, capable of carrying storm run-Off in
a safe manner, shall be scheduled for installation
to the greatest extent possible before removing
vegetation cover from an area.

3. Whenever feasible, natural vegetation shall be

retained and protected.

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4. Where inadequate vegetation exists, temporary
or permanent vegetation shall be established.

5. The smallest practical area Of land shall be
exposed at any one time during development.

6. When land is exposed during development, the

 

exposure shall be kept to the shortest practical :7
period of time.
7. Critical areas exposed during construction
shall be protected with temporary vegetation
Lw

and/or mulching.

8. Sediment basins (debris basins, desilting
basins, or silt traps) shall be installed and
maintained to remove sediment from run-off
waters from land undergoing development.

9. Provisions shall be made to effectively
accomodate the increased run-Off caused by
changed soil and surface conditions during and
after develOpment.

10. The permanent final vegetation and structures
shall be installed as soon as practical in the
development.

DEVELOPMENTAL STANDARDS

 

All development plans, specifiCations and timing
schedules, including extentions of previously approved

plans, shall include provisions for erosion and

79

sediment control in accordance with the standards and

specifications established by the ( ) Soil

 

Conservation District.

1. Technical standards for the design and install-
ation of erosion and sediment control measures
are on file at the offices of the ( )
Soil Conservation District and other govern-
mental agencies.

MAINTENANCE

 

Individuals or developers carrying out soil erosion and
sediment control measures under this Ordinance, and all
subsequent owners of property on which such measures

have been installed, shall adequately maintain all
permanent erosion control measures, devices and plantings

in effective working condition.

ARTICLE V
VARIANCES AND EXCEPTIONS

The (Legislative Body of Jurisdiction) shall have the
authority to interpret this Ordinance and may in specific
cases grant variances and exceptions to these require-
ments providing such variance or exception is in harmony

with the general purpose and intent Of the requirements.

80

ARTICLE VI
INSPECTION AND ENFORCEMENT

The requirements Of this Ordinance shall be enforced by
the (Designated Official) who shall inspect or require
adequate inspection of the work. If the (Designated
Official) finds any existing conditions not as stated in
any application, grading permit, or approved plan, he

may refuse to approve further work.

APPENDIX D

81

SUBSTITUTE FOR HOUSE BILL NO. 4709

(Final Draft)

A bill to provide for the control of soil erosion,
to protect the waters of the state from sedimentation; to
prescribe the functions Of state and local agencies; to
require preparation of a state program; to provide for the
promulgation of rules; and to provide remedies for

violations.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act Shall be known and may be cited as
the "soil erosion and sedimentation control act of 1972".

Sec. 2 (l) "Authorized public agency" means a public
agency to which authority has been delegated by a local
agency pursuant to section 7 (2) to enforce soil erosion and
sedimentation control requirements for lands and activities
under its jurisdiction.

(2) "Commission" means the water resources commission
of the department of natural resources.

(3) "Department" means the state department of
agriculture.

(4) "Earth change" means a man-made change in the
natural cover or topography of land which may permit soil
erosion and resulting sedimentation of the waters of the

state.

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(5) "Land use" means a use of land which may result
in an earth change and which may result in or contribute to
soil erosion and sedimentation of the waters of the state,
including but not limited to subdivision and other residential
development, private and public highway and local road and
street construction, drainage ditch construction, logging
Operations, agricultural practices and mining.

(6) "Local agency" means a county, city, village or
charter township.

(7) "Public agency" means a county road commission,
county drain commission, school board or any other local unit
of government which is not a local agency.

Sec. 3. (l) "Sediment" means solid particulate
matter, mineral or organic, that has been deposited in water,
is in suspension in water, is being transported, or has been
removed from its site of origin by the processes of soil
erosion.

(2) "Soil conservation district" means a soil
conservation district authorized by section 5 of Act NO. 297
of the Public Acts of 1937, as amended, being section 282.5
of the Compiled Laws of 1948.

(3) "Soil erosion" means the wearing away of land
by the action of wind, water, gravity or a combination
thereof.

(4) "State agency" means a principal state

department.

83

Sec. 4. (1) By July 1, 1973, the department, with
the assistance of the soil conservation districts, and with
the approval of the commission, shall prepare a unified
statewide soil erosion and sedimentation control program.

The program shall identify land uses which may be governed

by this act and shall include recommendations, guidelines,

and specifications for the control of soil erosion for the

identified land uses to prevent sedimentation of the waters
of this state.

(2) The commission shall make available to the
department:

(a) Information on the effects of sediments on water
quality and the damages of water resources that may be attri-
buted thereto.

(b) The location of those waters of this state
which are degraded or have potential for being degraded by
sedimentation.

(c) Water quality standards which shall be included
in the program to protect the designated uses of the waters
Of this state.

Sec. 5. (1) By October 1, 1973, the commission,
with the assistance of the department, shall prepare rules
for a unified soil erosion and sedimentation control program.
The rules shall provide for the approval and development of

land use plans, erosion control and sedimentation control.

84

The commission shall submit copies of the rules to state,
local and public agencies affected by this act.

(2) The commission shall adopt and promulgate the
rules in accordance with and subject to Act NO. 306 of the
Public Acts of 1969, as amended, being sections 24.201 to
24.315 of the Compiled Laws of 1948.

Sec. 6. (1) Within 6 months after the effective
date of the rules promulgated pursuant to section 5, a local
agency shall submit to the commission an ordinance embodying
the provisions of the rules for those lands under that
agency's jurisdiction. The ordinance shall further outline
the procedures and methods by which the agency shall implement
and enforce the provisions of the rules and the means by which
the commission shall be notified of any violation thereof.
The commission shall submit the ordinance to the apprOpriate
soil conservation district which shall review the provisions
thereof and submit to the commission within 60 days its
comments thereon. Upon approval of the ordinance by the
commission, the local agency shall adopt the ordinance.

(2)(a). Within 6 months after the effective date of
the rules promulgated pursuant to section 5, a state, local
cor public agency shall submit to the commission soil erosion
iand sedimentation control procedures for all land uses and
developments normally undertaken by such agency. In the
cnase of a local or public agency, the commission shall submit

Stuzh procedures to the appropriate soil conservation district

85

for review, which shall within 60 days submit its comments
thereon to the commission. In the case of a state agency,
the commission shall submit such procedures to the department
for review, which shall within 60 days submit its comments
thereon to the commission.

(2)(b). After approval Of such procedures by the
commission, all affected land uses and developments under-
taken by the state, local or public agency shall be under-
taken pursuant thereto. If determined necessary by the
commission and upon request by a state, local or public
agency, the commission may grant a variance to the provisions
of this subsection.

(3) If the commission finds and determines that a
local agency's soil erosion and sedimentation control
procedures are adequate for land uses or develOpments
normally undertaken by that agency or any authorized public
agency thereof, authority may be delegated to that local
agency by the commission to carry out the provisions of sub-
section (2) of this section as they pertain to public
agencies.

Sec. 7. (1) The ordinance adopted pursuant to
section 6 of this act shall be enforced by each local agency
as to lands under its jurisdiction except that county
enforcement shall not be extended to lands in cities,

villages and charter townships.

86

(2) A local agency may delegate its authority as
prescribed by subsection (1) of this section to a public
agency, but in any case, the local agency shall file notice
of all violations of the ordinance with the commission.

(3) A local agency may contract with a soil conser-
vation district for the purpose of assuring compliance with
the ordinance, but the local agency shall provide for the
enforcement of the ordinanceand shall notify the commission
of all violations thereof.

Sec. 8. Before a local agency approves a plat,
pursuant to sections 112, 113 and 114 of Act NO. 288 Of the
Public Acts of 1967, being sections 560.112, 560.113 and
560.114 of the Compiled Laws of 1948, for a development or
land use, the develOper or land user shall certify to the
local agency that he will comply with all requirements as
contained in its soil erosion and sedimentation control
ordinance adOpted pursuant to this act. The develOper of
land user, at the time of certification, shall post a
performance bond equivalent to 10 percent of the assessed
valuation Of the property upon which the development or
land use shall be undertaken.

Sec. 9. To assure statewide uniformity for soil
erosion and sedimentation control, ordinances adopted
pursuant to section 6 (1) shall take precedence over any

other ordinance Of a local agency containing soil erosion

87

and sedimentation control provisions, except where such
other ordinance is more restrictive.

Sec. 10. A local agency which fails to enforce an
ordinance adopted pursuant to section 6 (l) or in any way
permits, allows or suffers the continuation of soil erosion
which may result in the sedimentation of the waters of this ?1
state by and of its inhabitants or persons occupying, using
or develOping lands from which sedimentation originates, is
subject to the remedies as prescribed in section 7 of Act 7J7
No. 245 Of the Public Acts of 1929, as amended, being section
323.7 of the Compiled Laws of 1948.

Sec. 11. The commission and the department, in order
to carry out their functions under this act, may promulgate
other rules in accordance with and subject to Act NO. 306
of the Public Acts of 1969, as amended.

Sec. 12. This act shall take effect January 1, 1973.

 

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