October 26, 2005, Introduced by Reps. Meisner, Murphy, Alma Smith, Kathleen Law, Gillard, Leland, Tobocman, Miller, Byrum, Gonzales, Donigan, Vagnozzi, Cushingberry, Brandenburg, Lemmons, Jr., Hopgood, Gaffney, Stewart and Nofs and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30101, 30102, 30301, and 30304 (MCL 324.30101,
324.30102, 324.30301, and 324.30304), section 30101 as amended by
1999 PA 106, section 30102 as added by 1995 PA 59, section 30301 as
amended by 2003 PA 14, and section 30304 as amended by 2004 PA 325,
and by adding sections 30102a, 30104a, 30104b, 30304a, and 30304b.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 30101. As used in this part:
(a) "Bottomland" means the land area of an inland lake or
stream that lies below the ordinary high-water mark and that may or
may not be covered by water.
(b) "Bulkhead line" means a line that is established pursuant
to this part beyond which dredging, filling, or construction of any
kind is not allowed without a permit.
(c) "Department" means the department of environmental
quality.
(d) "Director" means the director of the department of
environmental quality.
(e) (d)
"Fund" means the land and water management
permit
fee fund created in section 30113.
(f) (e)
"Impoundment" means water held back by a
dam, dike,
floodgate, or other barrier.
(g) (f)
"Inland lake or stream" means a natural or
artificial lake, pond, or impoundment; a river, stream, or creek
which may or may not be serving as a drain as defined by the drain
code of 1956, 1956 PA 40, MCL 280.1 to 280.630; or any other body
of water that has definite banks, a bed, and visible evidence of a
continued flow or continued occurrence of water, including the St.
Marys, St. Clair, and Detroit rivers. Inland lake or stream does
not include the Great Lakes, Lake St. Clair, or a lake or pond that
has a surface area of less than 5 acres.
(h) (g)
"Marina" means a facility that is owned or
operated
by a person, extends into or over an inland lake or stream, and
offers service to the public or members of the marina for docking,
loading, or other servicing of recreational watercraft.
(i) (h)
"Minor offense" means either of the
following
violations of this part if the project involved in the offense is a
minor project as listed in R 281.816 of the Michigan administrative
code or the department determines that restoration of the affected
property is not required:
(i) The failure to obtain a permit under this part.
(ii) A violation of a permit issued under this part.
(j) (i)
"Ordinary high-water mark" means the line
between
upland and bottomland that persists through successive changes in
water levels, below which the presence and action of the water is
so common or recurrent that the character of the land is marked
distinctly from the upland and is apparent in the soil itself, the
configuration of the surface of the soil, and the vegetation. On an
inland lake that has a level established by law, it means the high
established level. Where water returns to its natural level as the
result of the permanent removal or abandonment of a dam, it means
the natural ordinary high-water mark.
(k) (j)
"Project" means an activity that requires
a permit
pursuant to section 30102.
(l) (k)
"Property owners' association" means any
group of
organized property owners publishing a directory of their
membership, the majority of which are riparian owners and are
located on the inland lake or stream that is affected by the
proposed project.
(m) (l) "Riparian owner" means a person who has
riparian
rights.
(n) (m)
"Riparian rights" means those rights which
are
associated with the ownership of the bank or shore of an inland
lake or stream.
(o) (n)
"Seasonal structure" includes any type of
dock, boat
hoist, ramp, raft, or other recreational structure that is placed
into an inland lake or stream and removed at the end of the boating
season.
(p) "Spring water" means that term as it is described in 21
CFR 165.110.
(q) (o)
"Structure" includes a marina, wharf,
dock, pier,
dam, weir, stream deflector, breakwater, groin, jetty, sewer,
pipeline,
cable, and or
bridge.
(r) "Surface water augmentation facility" means a water well
or other removal method used to withdraw groundwater and convey or
transport it to a lake, an impoundment, or another surface water
body for the purpose of maintaining or raising the water level of
the surface water body.
(s) (p)
"Upland" means the land area that lies above the
ordinary high-water mark.
(t) "Withdraw" or "withdrawal" means the removal of water from
its source for any purpose.
Sec. 30102. (1) Except as provided in this part, a person
without a permit from the department shall not do any of the
following:
(a) Dredge or fill bottomland.
(b) Construct, enlarge, extend, remove, or place a structure
on bottomland.
(c) Erect, maintain, or operate a marina.
(d) Create, enlarge, or diminish an inland lake or stream.
(e) Structurally interfere with the natural flow of an inland
lake or stream.
(f) Construct, dredge, commence, extend, or enlarge an
artificial canal, channel, ditch, lagoon, pond, lake, or similar
waterway where
if the purpose is ultimate connection with an
existing
inland lake or stream, or where if
any part of the
artificial waterway is located within 500 feet of the ordinary
high-water mark of an existing inland lake or stream.
(g) Connect any natural or artificially constructed waterway,
canal, channel, ditch, lagoon, pond, lake, or similar water with an
existing inland lake or stream for navigation or any other purpose.
(h) Operate a surface water augmentation facility that affects
an inland lake or stream.
(i) Withdraw tributary surface water, spring water, or
groundwater if the withdrawal affects the natural flow of water
into an inland lake or stream.
(2) A permit is not required under this part for activities
described in subsection (1)(h) or (i) if a permit for those
activities is required under part 327 or part 303.
Sec. 30102a. (1) Subject to subsection (2), an individual
permit under section 30102(1)(i) is required for a new or increased
withdrawal that has the potential to cause adverse environmental
impacts on water or water-dependent natural resources. In
determining whether a withdrawal has the potential to cause adverse
environmental impacts, the department shall consider all of the
following:
(a) The size of the withdrawal.
(b) The timing of the withdrawal.
(c) The location of the withdrawal in relationship to surface
water drainage and groundwater flow.
(d) The sensitivity of potentially impacted areas to changes
in water flow or level, including base summer flow, and flow from
groundwater.
(e) The potential impact on water or water-dependent natural
resources and recreational uses.
(f) The potential diminishment in stream flow.
(2) The department shall create an assessment tool that
members of the public may use to determine if they would be
required to submit an application for an individual permit for a
water withdrawal or would be covered by a permit under section
30104a.
Sec. 30104a. (1) The department, after notice and opportunity
for a public hearing, may issue general permits on a statewide
basis or within a local unit of government for a category of
activities if the department determines that the activities are
similar in nature, will cause only minimal environmental effects
when performed separately, and will have only minimal cumulative
effect on the environment. A general permit issued under this
subsection shall be based on the requirements of this part and the
rules promulgated under this part, and shall set forth the
requirements and standards that apply to an activity authorized by
the general permit.
(2) The department may impose conditions on a permit if
necessary to protect the waters or water-dependent natural
resources of the state.
(3) The department may establish a reasonable term for a
general permit. However, a general permit shall not be valid for
more than 5 years.
Sec. 30104b. (1) The department may conduct an investigation,
based on precipitation, water use, and hydrologic information, of
potential adverse impacts on water or water-dependent natural
resources of the state resulting from 1 or more water withdrawals.
(2) Any person may submit a petition to the director alleging
that 1 or more water withdrawals are adversely impacting, or have
the potential to adversely impact, water or water-dependent natural
resources of the state. The director shall forward the petition to
the director of the department of agriculture if the water
withdrawals are from an agricultural well. The petition shall be in
writing and shall be submitted in person, via certified mail, via
the toll-free facsimile telephone number provided in subsection
(7), or via other means of electronic submittal as developed by the
department. However, the director or the director of the department
of agriculture may refuse to accept an unreasonable petition. The
petition shall include all of the following information:
(a) The name, address, and telephone number of the person.
(b) The location of the potential impact, including the
county, township, township section, and address of the property on
which the water body is situated, and all other available
information that defines the location of that well.
(c) An explanation of why the person believes that natural
resources are being or have the potential to be adversely impacted.
(d) The date or dates that the person observed any impacts.
(e) Sufficient evidence to establish a reasonable belief that
the impacts are occurring or will occur if current practices of
water users in the area continue in the same manner as they have to
that point.
(3) The person may call the toll-free telephone line provided
for in subsection (7) to request a petition form or other
information regarding the dispute resolution process provided in
this section.
(4) Within 7 working days after receipt of a petition under
subsection (2), the director or the director of the department of
agriculture, as appropriate, shall contact the person submitting
the petition and begin an investigation. Within 10 working days
after receipt of a petition under subsection (2), the director or
the director of the department of agriculture, as appropriate,
shall conduct an on-site evaluation. However, if the department or
department of agriculture has already conducted an investigation of
circumstances in close proximity to the allegations in the petition
during the previous 60 days, an on-site investigation is not
required. The director or the director of the department of
agriculture, as appropriate, shall give affected persons an
opportunity to contribute to the investigation of a petition.
(5) After conducting an investigation initiated by the
department or in response to a petition, the director or the
director of the department of agriculture, as appropriate, shall
make a diligent effort to resolve the issues raised by the
investigation or in the petition. Except as provided in section
32712e, before taking action under subsection (6), the department
in an effort to prevent potential adverse impacts shall call a
meeting of all documented water users in the area in an attempt to
come to a voluntary resolution of any potential problem. In
attempting to resolve the issues raised in a petition, the director
or the director of the department of agriculture, as appropriate,
may propose a remedy that he or she believes would equitably
resolve the issues. If, within 30 days following the submittal of a
petition, the director of the department of agriculture is unable
to resolve the issues, the director of the department of
agriculture shall refer the petition, and provide all relevant
information, to the director.
(6) If within 30 days after the date of the meeting of all
documented water users under subsection (5) the voluntary disputes
resolution process under this section fails to result in changes
that are expected to avert potential adverse impacts on water or
water-dependent natural resources, the director may issue an order
to require the owner or operator of a water withdrawal facility to
take any of the following actions:
(a) Reduce pumping rates of a water withdrawal, or alter the
timing of such withdrawals.
(b) Implement water conservation practices.
(c) Other action necessary to avoid potential environmental
impacts.
(7) The director shall provide for the use of a toll-free
facsimile telephone line to receive petitions and a toll-free
telephone line for owners of small quantity wells to request
petition forms and to obtain other information regarding the
dispute resolution process provided in this section.
(8) The director and the director of the department of
agriculture shall do both of the following:
(a) Publicize the toll-free facsimile line and the toll-free
telephone line provided for in subsection (7).
(b) Enter into a memorandum of understanding that describes
the process that will be followed by each director when a petition
involves an agricultural well.
(9) A person who submits more than 2 unverified petitions
under this section within 1 year may be ordered by the director to
pay for the full costs of investigation of any third or subsequent
unverified notice. As used in this subsection, "unverified notice"
means a petition in response to which the director determines that
there is not reasonable evidence to suspect adverse natural
resource impacts.
Sec. 30301. As used in this part:
(a) "Beach" means the area landward of the shoreline of the
Great Lakes as the term shoreline is defined in section 32301.
(b) "Beach maintenance activities" means any of the following
in the area of Great Lakes bottomlands lying below the ordinary
high-water mark and above the water's edge:
(i) Manual or mechanized leveling of sand.
(ii) Mowing of vegetation.
(iii) Manual de minimis removal of vegetation.
(iv) Grooming of soil.
(v) Construction and maintenance of a path.
(c) "Debris" means animal or fish carcasses, zebra mussel
shells, dead vegetation, trash, and discarded materials of human-
made origin.
(d) "Department" means the department of environmental
quality.
(e) "Director" means the director of the department.
(f) "Fill material" means soil, rocks, sand, waste of any
kind, or any other material that displaces soil or water or reduces
water retention potential.
(g) "Environmental area" means an environmental area as
defined in section 32301.
(h) "Grooming of soil" means raking or dragging, pushing, or
pulling metal teeth through the top 4 inches of soil without
disturbance of or destruction to plant roots, for the purpose of
removing debris.
(i) "Leveling of sand" means the relocation of sand within
areas being leveled that are predominantly free of vegetation,
including the redistribution, grading, and spreading of sand that
has been deposited through wind or wave action onto upland riparian
property.
(j) "Minor drainage" includes ditching and tiling for the
removal of excess soil moisture incidental to the planting,
cultivating, protecting, or harvesting of crops or improving the
productivity of land in established use for agriculture,
horticulture, silviculture, or lumbering.
(k) "Mowing of vegetation" means the cutting of vegetation to
a height of not less than 2 inches, without disturbance of soil or
plant roots.
(l) "Ordinary high-water mark" means that term as it is defined
in section 32502.
(m) "Path" means a temporary access walkway from the upland
riparian property directly to the shoreline across swales with
standing water, not exceeding 6 feet in bottom width and consisting
of sand and pebbles obtained from the exposed, nonvegetated
bottomlands or from the upland riparian property.
(n) "Person" means an individual, sole proprietorship,
partnership, corporation, association, municipality, this state, an
instrumentality or agency of this state, the federal government, an
instrumentality or agency of the federal government, or other legal
entity.
(o) "Removal of vegetation" means the manual or mechanized
removal of vegetation, other than the manual de minimis removal of
vegetation.
(p) "Spring water" means that term as it is defined in 21 CFR
165.110.
(q) "Surface water augmentation facility" means a water well
or other removal method used to withdraw groundwater and convey or
transport it to a lake, an impoundment, or another surface water
body for the purpose of maintaining or raising the water level of
the surface water body.
(r) (p)
"Wetland" means land characterized by the
presence
of water at a frequency and duration sufficient to support, and
that under normal circumstances does support, wetland vegetation or
aquatic life, and is commonly referred to as a bog, swamp, or marsh
and which is any of the following:
(i) Contiguous to the Great Lakes or Lake St. Clair, an inland
lake or pond, or a river or stream.
(ii) Not contiguous to the Great Lakes, an inland lake or pond,
or a river or stream; and more than 5 acres in size; except this
subparagraph shall not be of effect, except for the purpose of
inventorying, in counties of less than 100,000 population until the
department certifies to the commission it has substantially
completed its inventory of wetlands in that county.
(iii) Not contiguous to the Great Lakes, an inland lake or pond,
or a river or stream; and 5 acres or less in size if the department
determines that protection of the area is essential to the
preservation of the natural resources of the state from pollution,
impairment, or destruction and the department has so notified the
owner; except this subparagraph may be utilized regardless of
wetland size in a county in which subparagraph (ii) is of no effect;
except for the purpose of inventorying, at the time.
(s) "Withdraw" or "withdrawal" means the removal of water from
its source for any purpose.
Sec. 30304. (1) Except as otherwise provided in this part or
by
a permit issued by the department under
sections 30306 to 30314
and
this part pursuant to part 13, a person shall not do any of
the following:
(a) Deposit or permit the placing of fill material in a
wetland.
(b) Dredge, remove, or permit the removal of soil or minerals
from a wetland.
(c) Construct, operate, or maintain any use or development in
a wetland.
(d) Drain surface water from a wetland.
(e) Operate a surface water augmentation facility that affects
a wetland.
(f) Withdraw tributary surface water, spring water, or
groundwater it the withdrawal affects the natural flow of water
into a wetland.
(2) A permit is not required under this part for activities
described in subsection (1)(e) or (f) if a permit for those
activities is required under part 327 or part 301.
Sec. 30304a. (1) Subject to subsection (2), an individual
permit under section 30304(f) is required for a new or increased
withdrawal that has the potential to cause adverse environmental
impacts on water or water-dependent natural resources. In
determining whether a withdrawal has the potential to cause adverse
environmental impacts, the department shall consider all of the
following:
(a) The size of the withdrawal.
(b) The timing of the withdrawal.
(c) The location of the withdrawal in relationship to surface
water drainage and groundwater flow.
(d) The sensitivity of potentially impacted areas to changes
in water flow or level, including base summer flow, and flow from
groundwater.
(e) The potential impact on water or water-dependent natural
resources and recreational uses.
(f) The potential diminishment in stream flow.
(2) The department shall create a tool that members of the
public may use to determine if they would be required to submit an
application for an individual permit for a water withdrawal or
would be covered by a permit under section 30312.
Sec. 30304b. The department may conduct an investigation,
based upon precipitation, water use, and hydrologic information, of
potential adverse impacts on water or water-dependent natural
resources of the state resulting from 1 or more water withdrawals.
Any person may submit a petition under section 30104b, alleging
that 1 or more water withdrawals are adversely impacting, or have
the potential to adversely impact, the water or water-dependent
natural resources of a wetland.