April 26, 2018, Introduced by Senator HUNE and referred to the Committee on Natural Resources.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 9106 (MCL 324.9106), as amended by 2005 PA 55.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
9106. (1) Subject to subsection (3), (4), a municipality
by ordinance may provide for soil erosion and sedimentation control
on public and private earth changes within its boundaries except
that
a township ordinance shall is
not be applicable within a
village that has in effect such an ordinance. An ordinance may be
more restrictive than, but shall not make lawful that which is
unlawful under, this part and the rules promulgated under this
part. If an ordinance adopted under this section is more
restrictive than this part and the rules promulgated under this
part, the municipal enforcing agency shall notify a person
receiving a permit under the ordinance that the ordinance is more
restrictive than this part and the rules promulgated under this
part. The ordinance shall incorporate by reference the rules
promulgated under this part that do not conflict with a more
restrictive ordinance, shall designate a municipal enforcing agency
responsible for administration and enforcement of the ordinance,
and may set forth such other matters as the legislative body
considers necessary or desirable. The ordinance shall be applicable
and shall be enforced with regard to all private and public earth
changes within the municipality except earth changes by an
authorized public agency. The municipality may consult with a
conservation district for assistance or advice in the preparation
of the ordinance. The ordinance may provide penalties for a
violation of the ordinance that are consistent with section 9121.
(2) An ordinance related to soil erosion and sedimentation
control that is not approved by the department as conforming to the
minimum requirements of this part and the rules promulgated under
this part has no force or effect. A municipality shall submit a
copy of its proposed ordinance or of a proposed amendment to its
ordinance to the department for approval before adoption. The
department shall forward a copy to the county enforcing agency of
the county in which the municipality is located and the appropriate
conservation district for review and comment. Within 90 days after
the department receives an existing ordinance, proposed ordinance,
or amendment, the department shall notify the clerk of the
municipality of its approval or disapproval along with
recommendations for revision if the ordinance, proposed ordinance,
or amendment does not conform to the minimum requirements of this
part or the rules promulgated under this part. If the department
does not notify the clerk of the local unit within the 90-day
period,
the ordinance, proposed ordinance, or amendment shall be is
considered to have been approved by the department.
(3) Two or more municipalities may provide for joint
administration and enforcement of this part and the rules
promulgated under this part by entering into a written interlocal
agreement pursuant to the urban cooperation act of 1967, 1967 (Ex
Sess) PA 7, MCL 124.501 to 124.512. However, if all of the
municipalities are not located, in whole or in part, in the same
county, the agreement does not take effect unless the department
approves the agreement in writing. The department shall approve the
agreement if the department determines that the agreement will
promote the effective administration and enforcement of this part
and rules promulgated under this part.
(4) (3)
A municipality shall not administer
and enforce this
part or the rules promulgated under this part or a local ordinance
unless the department has approved the municipality. An approval
under this section is valid for 5 years, after which the department
shall review the municipality for reapproval. At least 6 months
before the expiration of each succeeding 5-year approval period,
the department shall complete a review of the municipality for
reapproval. The department shall approve a municipality if all of
the following conditions are met:
(a) The municipality has enacted an ordinance as provided in
this section that is at least as restrictive as this part and the
rules promulgated under this part.
(b) The individuals with decision-making authority who are
responsible for administering the soil erosion and sedimentation
control program for the municipality have current certificates of
training under section 9123.
(c) The municipality has submitted evidence of its ability to
effectively administer and enforce a soil erosion and sedimentation
control program. In determining whether the municipality has met
the requirements of this subdivision, the department shall consider
all of the following:
(i) Whether a mechanism is in place to provide funding to
administer the municipality's soil erosion and sedimentation
control program.
(ii) The adequacy of the documents proposed for use by the
municipality including, but not limited to, application forms, soil
erosion and sedimentation control plan requirements, permit forms,
and inspection reports.
(iii) If the municipality has previously administered a soil
erosion and sedimentation control program, whether the municipality
effectively administered and enforced the program in the past or
has implemented changes in its administration or enforcement
procedures that the department determines will result in the
municipality effectively administering and enforcing a soil erosion
and sedimentation control program in compliance with this part and
the rules promulgated under this part. In determining whether the
municipality has met the requirement of this subparagraph, the
department shall consider all of the following:
(A) Whether the municipality has had adequate funding to
administer the municipality's soil erosion and sedimentation
control program.
(B) Whether the municipality has conducted adequate
inspections to assure minimization of soil erosion and off-site
sedimentation.
(C) The effectiveness of the municipality's past compliance
and enforcement efforts.
(D) The adequacy and effectiveness of the applications and
soil erosion and sedimentation control plans being accepted by the
municipality.
(E) The adequacy and effectiveness of the permits issued by
the municipality and the inspections being performed by the
municipality.
(F) The conditions at construction sites under the
jurisdiction of the municipality as documented by departmental
inspections.
(5) (4)
If the department determines that a
municipality is
not
approved under subsection (3) (4)
or that a municipality that
was
previously approved under subsection (3) (4) is not
satisfactorily administering and enforcing this part and the rules
promulgated under this part, the department shall enter an order,
stipulation, or consent agreement under section 9112(7) denying the
municipality authority or revoking the municipality's authority to
administer a soil erosion and sedimentation control program. Upon
entry of this order, stipulation, or consent agreement, the county
program for the county in which the municipality is located becomes
operative within the municipality.
(6) (5)
A municipality that elects to
rescind its ordinance
shall notify the department. Upon rescission of its ordinance, the
county program for the county in which the municipality is located
becomes operative within the municipality.
(7) (6)
A municipality that rescinds its
ordinance or is not
approved by the department to administer the program shall retain
jurisdiction
over projects under permit at that the time of the
rescission or disapproval. The municipality shall retain
jurisdiction until the projects are completed and stabilized or the
county agrees to assume jurisdiction over the permitted earth
changes.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.