SB-0850, As Passed Senate, December 8, 2005

SUBSTITUTE FOR

SENATE BILL NO. 850

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 30103, 32701, 32702, 32707, and 32713 (MCL

324.30103, 324.32701, 324.32702, 324.32707, and 324.32713),

sections 30103, 32702, and 32713 as added by 1995 PA 59 and

sections 32701 and 32707 as amended by 2003 PA 148, and by adding

sections 32704a, 32721, 32722, 32723, 32724, 32726, 32727, and

32728; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 30103. (1) A permit is not required under this part for

any of the following:

     (a) Any fill or structure existing before April 1, 1966, in

waters covered by former  Act No. 291 of the Public Acts of 1965

1965 PA 291, and any fill or structures existing before January 9,

1973, in waters covered for the first time by former  Act No. 346

of the Public Acts of 1972  1972 PA 346.

     (b) A seasonal structure placed on bottomland to facilitate

private noncommercial recreational use of the water if it does not

unreasonably interfere with the use of the water by others entitled

to use the water or interfere with water flow.

     (c) Reasonable sanding of beaches to the existing water's edge

by a riparian owner.

     (d) Construction or maintenance of a private agricultural

drain regardless of outlet.

     (e) A waste collection or treatment facility that is ordered

to be constructed or is approved for construction by the

department.  of public health or ordered or approved by the

department.

     (f) Construction and maintenance of minor drainage structures

and facilities which are identified by rule promulgated by the

department pursuant to section 30110(1). Before such a rule is

promulgated, the rule shall be approved by the majority of a

committee consisting of the director, the director of the

department of agriculture, and the director of the state

transportation department or their designated representatives. The

initial rules shall be  issued before July 8, 1973, and shall be

reviewed at least annually.  after that date.

     (g) Maintenance and improvement of all drains legally

established or constructed prior to January 1, 1973, pursuant to

the drain code of 1956,  Act No. 40 of the Public Acts of 1956,

being sections 280.1 to 280.630 of the Michigan Compiled Laws  1956

PA 40, MCL 280.1 to 280.630, except those legally established

drains constituting mainstream portions of certain natural

watercourses identified in rules promulgated by the department

under section 30110.

     (h) Projects constructed under the watershed protection and

flood prevention act, chapter 656, 68 Stat. 666, 16  U.S.C.  USC

1001 to 1008 and 1010.

     (i) Construction and maintenance of privately owned cooling or

storage ponds used in connection with a public utility except at

the interface with public waters.

     (j) Maintenance of a structure constructed under a permit

issued pursuant to this part and identified by rule promulgated

under section 30110(1), if the maintenance is in place and in kind

with no design or materials modification.

     (k) A water withdrawal.

     (2) As used in this section, "water withdrawal" means the

removal of water from its source for any purpose.

     Sec. 32701. As used in this part:

     (a) "Adverse resource impact" means either of the following:

     (i) Decreasing the flow of a stream by part of the index flow

such that the stream's ability to support characteristic fish

populations is functionally impaired.

     (ii) Decreasing the level of a body of surface water such that

the body of surface water's ability to support characteristic fish

populations is functionally impaired.

(b)  (a) "Agricultural purpose" means the agricultural

production of  those plants and animals useful to human beings

produced by agriculture and includes, but is not limited to,

forages and sod crops, grains and feed crops, field crops, dairy

animals and dairy products, poultry and poultry products, cervidae,

livestock, including breeding and grazing, equine, fish and other

aquacultural products, bees and bee products, berries, herbs,

fruits, vegetables, flowers, seeds, grasses, nursery stock, trees

and tree products, mushrooms, and other similar products, or any

other product, as determined by the commission of agriculture, that

incorporates the use of food, feed, fiber, or fur.

     (c) "Baseline capacity" means either of the following:

     (i) The following applicable withdrawal capacity as reported to

the department or the department of agriculture, as appropriate, by

the person making the withdrawal:

     (A) For a community supply, the total designed withdrawal

capacity for the community supply under the safe drinking water

act, 1976 PA 399, MCL 325.1001 to 325.1023, on the effective date

of the amendatory act that added this subparagraph.

     (B) Unless reported under a different provision of this

subparagraph, for a quarry or mine that holds a discharge permit

under part 31 that includes a discharge volume, the discharge

volume stated in that permit on the effective date of the

amendatory act that added this subparagraph.

     (C) The system capacity used to make a withdrawal on the

effective date of the amendatory act that added this subparagraph,

if the system capacity and a description of the system capacity are

included in an annual report that is submitted under this part.

     (ii) The highest annual amount of water withdrawn as reported

under this part for calendar year 2002, 2003, 2004, or 2005.

(d)  (b) "Consumptive use" means that portion of water

withdrawn or withheld from the Great Lakes basin and assumed to be

lost or otherwise not returned to the Great Lakes basin due to

evaporation, incorporation into products, or other processes.

(e)  (c) "Department" means the department of environmental

quality.

     (f) "Designated trout stream" means a trout stream identified

on the document entitled "Designated Trout Streams for the State of

Michigan", as issued under order of the director of the department

of natural resources, FO-210.04, on October 10, 2003.

(g)  (d) "Farm" means that term as it is defined in section 2

of the Michigan right to farm act, 1981 PA 93, MCL 286.472.

     (h) "Generally accepted water management practices" means

standards or guidelines for water use that ensure water is used

efficiently.

(i)  (e) "Great Lakes basin" means the watershed of the Great

Lakes and the St. Lawrence river.

(j)  (f) "Great Lakes charter" means the document

establishing the principles for the cooperative management of the

Great Lakes water resources, signed by the governors and premiers

of the Great Lakes region on February 11, 1985.

(k)  (g) "Great Lakes region" means the geographic region

composed of the states of Illinois, Indiana, Michigan, Minnesota,

New York, Ohio, and Wisconsin, the commonwealth of Pennsylvania,

and the provinces of Ontario and Quebec, Canada.

     (h) "Industrial or processing facility" means an operating

plant or other entity, including a thermoelectric power generation

plant, carrying on a common manufacturing activity, trade, or

business on a common site, including similar plants or entities

under common ownership or control located on contiguous properties.

Plants or entities under common ownership or control located on

separate sites shall be considered separate facilities. Industrial

or processing facility does not include an irrigation facility or a

farm.

     (i) "Irrigation facility" means all wells, pumps, intakes,

gates, tanks, pipes, or other equipment under common ownership or

control and located either on the same site or on separate sites,

which are used to withdraw, convey, or distribute water for the

purposes of irrigating golf courses, parks, recreational areas, or

other grounds. Irrigation facility does not include a farm.

      (j) "Public water supply system" means a water system that

provides water for human consumption or other purposes to persons

other than the supplier of water.

     (l) "Index flow" means the 50% exceedance flow for the lowest

flow month of the flow regime, for the applicable stream reach, as

determined over the period of record or extrapolated from analyses

of the United States geological survey stream flow gauges in

Michigan.

     (m) "Large quantity withdrawal" means 1 or more cumulative

total withdrawals of over 100,000 gallons of water per day average

in any consecutive 30-day period that supply a common distribution

system.

     (n) "New or increased large quantity withdrawal" means a new

water withdrawal of over 100,000 gallons of water per day average

in any consecutive 30-day period or an increase of over 100,000

gallons of water per day average in any consecutive 30-day period

beyond the baseline capacity of a withdrawal.

     (o) "New or increased withdrawal capacity" means new or

additional water withdrawal capacity to supply a common

distribution system that is an increase from the person's baseline

capacity. New or increased capacity does not include maintenance or

replacement of existing withdrawal capacity.

(p)  (k) "Registrant" means  any industrial or processing

facility or irrigation facility registered  a person who registers

water withdrawal capacity under this part.

(q)  (l) "Water  "Waters of the Great Lakes basin" means the

Great Lakes and all streams, rivers, lakes, connecting channels,

and other bodies of water, including groundwater, within the Great

Lakes basin.

     (r) "Waters of the state" means groundwater, lakes, rivers,

and streams and all other watercourses and waters, including the

Great Lakes, within the territorial boundaries of the state.

(s)  (m) "Withdrawal" means the removal of water from its

source for any purpose, other than for hydroelectric generation at

sites certified, licensed, or permitted by the federal energy

regulatory commission.

     Sec. 32702. (1) The legislature finds and declares that:

     (a) A diversion of water out of the basin of the Great Lakes

may impair or destroy the Great Lakes. The legislature further

finds that a limitation on such diversions is authorized by and is

consistent with the mandate of section 52 of article IV of the

state constitution of 1963 that the legislature provide for the

protection of the air, water, and other natural resources of the

state from pollution, impairment, and destruction.

     (b) Water use registration and reporting are essential to

implementing the principles of the Great Lakes charter and

necessary to support the state's opposition to diversion of waters

of the Great Lakes basin and to provide a source of information on

water use to protect Michigan's rights when proposed water losses

affect the level, flow, use, or quality of waters of the Great

Lakes basin.

     (c) The waters of the state are valuable public natural

resources held in trust by the state, and the state has a duty as

trustee to manage its waters effectively for the use and enjoyment

of present and future residents and for the protection of the

environment.

     (d) The waters of the Great Lakes basin are a valuable public

natural resource, and the states and provinces of the Great Lakes

region and Michigan share a common interest in the preservation of

that resource.

     (e) Any new diversion of waters of the Great Lakes basin for

use outside of the Great Lakes basin will have significant economic

and environmental impact adversely affecting the use of this

resource by the Great Lakes states and Canadian provinces.

     (f) The continued availability of water for domestic,

municipal, industrial, and agricultural water supplies, navigation,

hydroelectric power and energy production, recreation, and the

maintenance of fish and wildlife habitat and a balanced ecosystem

are vital to the future economic health of the states and provinces

of the Great Lakes region.

     (g) Future interbasin diversions and consumptive uses of

waters of the Great Lakes basin may have significant adverse

impacts upon the environment, economy, and welfare of the Great

Lakes region and of this state.

     (h) The states and provinces of the Great Lakes region have a

duty to protect, conserve, and manage their shared water resources

for the use and enjoyment of present and future residents.

     (i) The waters of the Great Lakes basin are capable of

concurrently serving multiple uses, and such multiple uses of water

resources for municipal, public, industrial, commercial,

agriculture, mining, navigation, energy development and production,

recreation, water quality maintenance, and the maintenance of fish

and wildlife habitat and a balanced ecosystem and other purposes

are encouraged, recognizing that such uses are interdependent and

must be balanced.

     (2) The legislature has the authority under sections 51 and 52

of article IV of the state constitution of 1963 to regulate the

withdrawal and uses of the waters of the state, including both

surface water and groundwater, to promote the public health,

safety, and welfare and to protect the natural resources of the

state from pollution, impairment, and destruction, subject to

constitutional protections against unreasonable or arbitrary

governmental action and the taking of property without just

compensation. This authority extends to all waters within the

territorial boundaries of the state.

     Sec. 32704a. The governor shall establish a public comment

period with regard to a proposal subject to 42 USC 1962d-20 to

divert waters of the Great Lakes basin outside of the Great Lakes

basin and shall notify the standing committees of the legislature

with jurisdiction over issues primarily pertaining to natural

resources and the environment of his or her receipt of the

proposal. The governor may waive the comment period under this

section if he or she determines that it is necessary to take

immediate action to provide humanitarian relief or firefighting

capabilities.

     Sec. 32707. (1) Except as provided in subsections (2) and (3),

a person who  owns an industrial or processing facility, an

irrigation facility, or a farm registered under this part  is

required to register under section 32705 or holds a permit under

section 32723 shall file a report annually with the department on a

form provided by the department. Reports shall be submitted by

April 1 of each year. Reports shall include the following

information:

     (a) The amount and rate of water withdrawn on an annual and

monthly basis.

     (b) The source or sources of the water supply.

     (c) The use or uses of the water withdrawn.

     (d) The amount of consumptive use of water withdrawn.

     (e) If the source of the water withdrawn is groundwater, the

location of the well or wells in latitude and longitude, with the

accuracy of the reported location data to within  15  25 feet.

     (f) If the source of water withdrawn is groundwater, the

static water level of the aquifer or aquifers, if practicable.

     (g) Other information specified by rule of the department.

     (h) At the discretion of the registrant or permit holder, the

baseline capacity of the withdrawal and, if applicable, a

description of the system capacity. If the registrant or permit

holder chooses to report the baseline capacity under this

subdivision, that information shall be included in the next report

submitted by the registrant or permit holder after the effective

date of the amendatory act that added this subdivision. Information

reported under this subdivision needs only to be reported to the

department on 1 occasion.

     (i) At the discretion of the registrant or permit holder, the

amount of water returned to the source watershed.

     (2) If a person reports the information required by this

section to the department in conjunction with a permit or for any

other purpose, that reporting, upon approval of the department,

shall satisfy the reporting requirements of this section.

     (3) The owner of a farm who reports water use under section

32708 is not required to report under subsection (1).

     (4) The department may, upon request from a person required to

report under this section, accept a formula or model that provides

to the department's satisfaction the information required in

subsection (1).

     (5) The department shall develop forms for reporting under

this section that minimize paperwork and allow for a notification

to the department instead of a report if the annual amount of water

withdrawn by a person required to report under this section is

within 4% of the amount last reported and the other information

required in subsection (1) has not changed since the last year in

which a report was filed.

     (6) Information described in section 32701(c)(i)(C) that is

provided to the department under subsection (1)(h) is exempt from

disclosure under the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246, and shall not be disclosed unless the department

determines that the withdrawal is causing an adverse resource

impact.

(7)  (6) A  Except as otherwise provided in this subsection, a

person who files an annual report or notification under this

section shall annually remit a water use reporting fee of  $100.00

$200.00 to the department. Beginning when a water withdrawal

assessment tool becomes effective upon legislative enactment

pursuant to the recommendations of the groundwater conservation

advisory council under section 32803, a person who files an annual

report or notification under this section shall annually remit a

water use reporting fee of $100.00 to the department. Water use

reporting fees shall be remitted to the department in conjunction

with the annual report or notification submitted under this

section. The department shall transmit water use reporting fees

collected under this section to the state treasurer to be credited

to the water use protection fund created in section 32714. A water

use reporting fee is not required for a report or notification

related to a farm that reports  water use  withdrawals under

section 32708.

     Sec. 32713. The department may request the attorney general to

commence a civil action for appropriate relief, including a

permanent or temporary injunction, for a violation of this part or

a rule promulgated under this part. An action under this section

shall be brought in the circuit court for the county of Ingham or

for the county in which the defendant is located, resides, or is

doing business. The court has jurisdiction to restrain the

violation and to require compliance. In addition to any other

relief granted, the court may impose a civil fine of not more than

$1,000.00. However, a person who knowingly violates section 32721

or 32723 or the terms of a permit issued under section 32723 is

responsible for the payment of a civil fine of not more than

$5,000.00 per day of violation. In addition to a fine, the attorney

general may file a suit in a court of competent jurisdiction to

recover the full value of the costs of surveillance and enforcement

by the state resulting from the violation.

     Sec. 32721. (1) A person shall not make a new or increased

large quantity withdrawal from the waters of the state that causes

an adverse resource impact to a designated trout stream.

     (2) Beginning 2 years after the effective date of the

amendatory act that added this section, a person shall not make a

new or increased large quantity withdrawal from the waters of the

state that causes an adverse resource impact.

     (3) This section does not apply to the baseline capacity of a

large quantity withdrawal that existed on the effective date of the

amendatory act that added this section.

     Sec. 32722. (1) Until a water withdrawal assessment tool

becomes effective upon legislative enactment pursuant to the

recommendations of the groundwater conservation advisory council

under section 32803, there is a rebuttable presumption that a new

or increased large quantity withdrawal will not cause an adverse

resource impact in violation of section 32721 under either of the

following circumstances:

     (a) The location of the withdrawal is more than 1,320 feet

from the banks of a designated trout stream.

     (b) The withdrawal depth of the well is at least 150 feet.

     (2) A presumption under subsection (1) may be rebutted by a

preponderance of evidence that a new or increased large quantity

withdrawal from the waters of the state has caused or is likely to

cause an adverse resource impact.

     Sec. 32723. (1) Except as provided in subsection (10), the

following persons shall obtain a water withdrawal permit prior to

making the withdrawal:

     (a) A person who develops withdrawal capacity to make a new

withdrawal of over 2,000,000 gallons of water per day from the

waters of the state, other than the Great Lakes and their

connecting waterways, to supply a common distribution system.

     (b) A person who develops increased withdrawal capacity beyond

baseline capacity of more than 2,000,000 gallons of water per day

from the waters of the state, other than the Great Lakes and their

connecting waterways, to supply a common distribution system.

     (c) A person who develops withdrawal capacity to make a new

withdrawal of more than 5,000,000 gallons of water per day from the

Great Lakes and their connecting waterways to supply a common

distribution system.

     (d) A person who develops increased withdrawal capacity beyond

baseline capacity of more than 5,000,000 gallons of water per day

from the Great Lakes and their connecting waterways to supply a

common distribution system.

     (2) A person shall apply for a permit under this section by

submitting an application to the department containing the

information described in section 32706. In addition, until 5 years

after the effective date of the amendatory act that added this

section, the applicant shall submit an application fee in the

amount of $2,000.00. The department shall provide public notice of

all applications received under this section.

     (3) A permit application is considered to be administratively

complete effective 30 days after it is received by the department

unless the department notifies the applicant, in writing, during

this 30-day period that the application is not administratively

complete or that the fee required to be accompanied with the

application has not been paid. If the department determines that

the application is not administratively complete, the notification

shall specify the information necessary to make the application

administratively complete. If the department notifies the applicant

as provided in this subsection, the 30-day period is tolled until

the applicant submits to the department the specified information

or fee.

     (4) The department shall make a decision whether to grant or

deny a permit under this section within 120 days of receipt of an

administratively complete application.

     (5) The department shall issue a permit under subsection

(1)(a) or (b) if the department determines the withdrawal will not

cause an adverse resource impact.

     (6) The department shall issue a permit under subsection

(1)(c) or (d) if all of the following conditions are met:

     (a) All water withdrawn, less any consumptive use, is

returned, either naturally or after use, to the source watershed.

     (b) The withdrawal will be implemented so as to ensure that

the proposal will result in no individual or cumulative adverse

resource impacts. Cumulative adverse resource impacts under this

subdivision shall be evaluated by the department based upon

available information gathered by the department.

     (c) Subject to section 32726, the withdrawal will be

implemented so as to ensure that it is in compliance with all

applicable local, state, and federal laws as well as all legally

binding regional interstate and international agreements, including

the boundary waters treaty of 1909.

     (d) The proposed use is reasonable under common law principles

of water law in Michigan.

     (e) The applicant has considered voluntary generally accepted

water management practices.

     (7) A permit issued under part 31 pursuant to 33 USC 1326(b)

shall be considered sufficient to demonstrate that there will not

be an adverse resource impact under section 32721 and satisfies the

conditions for a permit under this section. Upon receipt of a

permit application and evidence that the applicant holds a part 31

permit described in this subsection, the department shall grant the

applicant a permit under this subsection.

     (8) The department may revoke a permit issued under this

section if the department determines following a hearing, based

upon clear and convincing scientific evidence, that the withdrawal

is causing an adverse resource impact.

     (9) A person who is aggrieved by a determination of the

department under this section related to a permit may file a sworn

petition with the department setting forth the grounds and reasons

for the complaint and asking for a contested case hearing on the

matter pursuant to the administrative procedures act of 1969, 1969

PA 306, MCL 24.201 to 24.328. A petition filed more than 60 days

after action on the permit may be rejected by the department as

being untimely. The department shall issue a final decision on a

petition for a contested case hearing within 6 months after

receiving the petition. A determination, action, or inaction by the

department following a contested case hearing is subject to

judicial review as provided in the administrative procedures act of

1969, 1969 PA 306, MCL 24.201 to 24.328.

     (10) The following are not required to obtain a permit under

this section:

     (a) A community supply that holds a permit under the safe

drinking water act, 1976 PA 399, MCL 325.1001 to 325.1023.

     (b) A person who makes seasonal withdrawals of not more than

2,000,000 gallons of water per day average in any consecutive 90-

day period to supply a common distribution system.

     (11) As used in this section:

     (a) "Great Lakes and their connecting waterways" means Lakes

Superior, Michigan, Huron, Erie, and Ontario and their connecting

waterways including the St. Marys river, Lake St. Clair, the St.

Clair river, and the Detroit river. For purposes of this section,

Lakes Huron and Michigan shall be considered a single Great Lake.

     (b) "Source watershed" means the watershed from which a

withdrawal originates. If water is withdrawn directly from a Great

Lake, then the source watershed shall be considered to be the

watershed of that Great Lake and its connecting waterways. If water

is withdrawn from the watershed of a stream that is a direct

tributary to a Great Lake, then the source watershed shall be

considered to be the watershed of that Great Lake, with a

preference for returning water to the direct tributary stream

watershed from which it was withdrawn.

     Sec. 32724. (1) A person who intends to make a new or

increased large quantity withdrawal for which a permit is not

required under section 32723 may petition the department for a

determination that the new or increased withdrawal will not cause

and is not likely to cause an adverse resource impact.

     (2) A petition under subsection (1) shall be submitted on a

form provided by the department. A report shall be submitted with

the petition containing the information described in section 32706

and an evaluation of environmental, hydrological, and

hydrogeological conditions that exist and the predicted effects of

the intended withdrawal that provides a reasonable basis for the

determination to be made. The petitioner shall also include with

the petition a fee of $5,000.00.

     (3) A petition is considered to be administratively complete

effective 30 days after it is received by the department unless the

department notifies the petitioner, in writing, during this 30-day

period that the petition is not administratively complete or that

the fee required to be accompanied with the petition has not been

paid. If the department determines that the petition is not

administratively complete, the notification shall specify the

information necessary to make the petition administratively

complete. If the department notifies the petitioner as provided in

this subsection, the 30-day period is tolled until the petitioner

submits to the department the appropriate information or fee.

     (4) Within 120 days after receipt of an administratively

complete petition, the department shall issue a written

determination to the petitioner that does either of the following:

     (a) Affirms that the proposed withdrawal will not cause and is

not likely to cause an adverse resource impact.

     (b) Specifies the reasons that an affirmative determination

under subdivision (a) cannot be made and states how the petitioner

can meet the criteria to obtain an affirmative determination.

     (5) A water withdrawal with regard to which an affirmative

determination is issued under this section shall be presumed not to

create an adverse resource impact. A presumption under this

subsection may be rebutted by a preponderance of evidence that the

withdrawal has caused or is likely to cause an adverse resource

impact.

     (6) The department shall submit a report every 2 years to the

senate and house appropriations committees and to the standing

committees of the senate and house of representatives with

jurisdiction primarily related to natural resources and the

environment that identifies the costs to the department in

reviewing petitions under this section and in reviewing

applications for permits under section 32723. Additionally, the

report shall detail the revenues generated from petitions under

this section, permit applicants under section 32723, and reporting

fees under section 32707.

     Sec. 32726. A local unit of government shall not enact or

enforce an ordinance that regulates an adverse resource impact

caused by a large quantity withdrawal.

     Sec. 32727. A withdrawal pursuant to part 111, 115, 201, or

213 is exempt from the requirements of this part.

     Sec. 32728. This part shall not be construed as affecting or

intending to affect or in any way alter or interfere with common

law water rights or the applicability of other laws providing for

the protection of natural resources or the environment.

     Enacting section 1. Sections 32711 and 32712 of the natural

resources and environmental protection act, 1994 PA 451, MCL

324.32711 and 324.32712, are repealed.

     Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

     (a) Senate Bill No. 851.

     (b) Senate Bill No. 852.

     (c) Senate Bill No. 854.

     (d) Senate Bill No. 857.