October 27, 2005, Introduced by Senators BIRKHOLZ, PATTERSON, SIKKEMA, VAN WOERKOM, GILBERT, BROWN, ALLEN, GEORGE and GARCIA and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30103, 32701, 32702, and 32713 (MCL 324.30103,
324.32701, 324.32702, and 324.32713), sections 30103, 32702, and
32713 as added by 1995 PA 59, and section 32701 as amended by 2003
PA 148, and by adding sections 32721, 32722, 32723, 32724, and
32725; 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 approved
for
construction by the department of
public community 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 base flow of a stream such that the stream
will no longer support characteristic fish populations.
(ii) Decreasing the level of a body of surface water such that
the body of surface water will no longer support characteristic
fish populations.
(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) "Aquifer" means any water-bearing bed or stratum of earth
or rock capable of yielding groundwater to a water well in
sufficient quantities that it can be withdrawn.
(d) "Base flow" means the 50% exceedance flow for the lowest
flow month of the flow regime for the applicable stream reach as
averaged over a 5-year period or extrapolated by the flow estimates
for Michigan.
(e) "Confined aquifer" means an aquifer overlain by geologic
material that has a low hydraulic conductivity and impedes or
prevents vertical groundwater movement.
(f) (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.
(g) (c)
"Department" means the department of
environmental
quality.
(h) "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.
(i) (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.
(j) (e)
"Great
Lakes basin" means the watershed
of the Great
Lakes and the St. Lawrence river.
(k) (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.
(l) (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.
(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 withdrawal capacity" means new or
additional water withdrawal capacity to supply a common
distribution system that is an increase from the person's water
withdrawal capacity that existed on the effective date of the 2005
amendments to this section. New or increased capacity does not
include maintenance or replacement of existing capacity.
(o) (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.
(k)
"Registrant" means any industrial or processing facility
or
irrigation facility registered under this part.
(p) "Unconfined aquifer" means an aquifer that is not a
confined aquifer, that has the water table as its upper boundary,
that is hydrologically connected to surface water bodies, and that
is recharged by water filtering down from the land surface.
(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. 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 large quantity
withdrawal that causes an adverse resource impact to a designated
trout stream.
(2) Subsection (1) does not apply to a large quantity
withdrawal from a confined aquifer.
Sec. 32722. (1) A large quantity withdrawal that exists on the
effective date of the amendatory act that added this section is
presumed not to create an adverse resource impact to a designated
trout stream.
(2) A new large quantity withdrawal or an increase to an
existing large quantity withdrawal is presumed not to create an
adverse resource impact to a designated trout stream 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 depth of the well is at least 150 feet.
(3) Upon the development of a water withdrawal assessment tool
as provided for in section 32803, a large quantity withdrawal is
presumed not to create an adverse resource impact if the water
withdrawal assessment tool determines that the large quantity
withdrawal is not likely to create an adverse resource impact.
Sec. 32723. (1) The following persons shall obtain a water
withdrawal permit prior to making the withdrawal:
(a) A person who intends to make a new withdrawal to supply a
common distribution system of over 2,000,000 gallons of water per
day average in any consecutive 90-day period from the waters of the
state.
(b) A person who intends to increase a withdrawal that existed
on the effective date of the amendatory act that added this section
to supply a common distribution system by more than 2,000,000
gallons of water per day average in any consecutive 90-day period
from the waters of the state.
(2) A person may apply for a permit under this section by
submitting an administratively complete application to the
department containing the information described in section 32706.
In addition, the applicant shall submit an application fee in the
amount of $1,000.00. The department shall provide public notice of
all applications received under this section.
(3) A permit application is considered to be administratively
complete effective 14 days after it is received by the department
unless the department notifies the applicant, in writing, during
this 14-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 notice shall
specify the information necessary to make the application
administratively complete. If the department notifies the applicant
as provided in this subsection, the 14-day period is tolled until
the applicant submits to the department the appropriate information
or fee.
(4) The department shall make a decision whether to grant or
deny a permit under this section within 60 days of receipt of an
administratively complete application.
(5) The department shall issue a permit under this section if
the department determines either of the following:
(a) The withdrawal is from a confined aquifer.
(b) The withdrawal will not cause an adverse resource impact.
(6) The department may modify the terms of a permit issued
under this section or revoke the permit if the department
determines based upon clear and convincing scientific evidence that
the withdrawal is causing an adverse resource impact.
(7) 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.
Sec. 32724. A withdrawal pursuant to part 111, 115, 201, or
213 is exempt from the requirements of this part.
Sec. 32725. This part shall not be construed as affecting or
intending to affect or in any way alter or interfere with common
law water rights.
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. Sections 30103, 32721, and 32722 of the
natural resources and environmental protection act, 1994 PA 451,
MCL 324.30103, 324.32721, and 324.32722, are repealed December 31,
2007.
Enacting section 3. 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. 852.
(b) Senate Bill No. 851.