November 5, 2013, Introduced by Senators ROBERTSON, NOFS, MOOLENAAR, GREEN, BOOHER, BRANDENBURG, COLBECK and HANSEN and referred to the Committee on Natural Resources, Environment and Great Lakes.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 30101 and 30105 (MCL 324.30101 and 324.30105),
section 30101 as amended by 2009 PA 139 and section 30105 as
amended by 2013 PA 98.
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) "Dam" means an artificial barrier, including dikes,
embankments, and appurtenant works, that impounds, diverts, or is
designed to impound or divert water.
(d) "Department" means the department of environmental
quality.
(e) "Expand" means to occupy a larger area of an inland lake
or stream than authorized by a permit issued under this part for
marina mooring structures and watercraft moored at the marina.
(f) "Fund" means the land and water management permit fee fund
created in section 30113.
(g) "Height of the dam" means the difference in elevation
measured vertically between the natural bed of an inland lake or
stream at the downstream toe of the dam, or, if it is not across a
stream channel or watercourse, from the lowest elevation of the
downstream toe of the dam, to the design flood elevation or to the
lowest point of the top of the dam, whichever is less.
(h) "Impoundment" means water held back by a dam, dike,
floodgate, or other barrier.
(i) "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.
(j) "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.
(k) "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.
(l) "Mooring structures" means structures used to moor
watercraft, including, but not limited to, docks, piers, pilings,
mooring anchors, lines and buoys, and boat hoists.
(m) "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.
(n) "Project" means an activity that requires a permit
pursuant to section 30102.
(o) "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.
(p) "Reconfigure" means to, without expanding the marina, do
either of the following:
(i) Change the location of the dock or docks and other mooring
structures at the marina to occupy an area of the inland lake or
stream that was not previously authorized by a permit issued under
this part.
(ii) Decrease the distance available for ingress and egress to
an outside slip as described in section 30106a.
(q) "Riparian interest area" means that portion of an inland
lake or stream over which a riparian owner has an ownership
interest.
(r) "Riparian owner" means a person who has riparian rights.
(s) "Riparian rights" means those rights which are associated
with the ownership of the bank or shore of an inland lake or
stream.
(t) "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.
(u) "Seawall" means a vertically sloped wall constructed to
break the force of waves and retain soil for the purpose of shore
protection.
(v) (u)
"Structure" includes a
wharf, dock, pier, seawall,
dam, weir, stream deflector, breakwater, groin, jetty, sewer,
pipeline, cable, and bridge.
(w) (v)
"Upland" means the land
area that lies above the
ordinary high-water mark.
Sec. 30105. (1) The department shall post on its website all
of the following under this part:
(a) A list of pending applications.
(b) Public notices.
(c) Public hearing schedules.
(2) The department may hold a public hearing on pending
applications.
(3) Except as otherwise provided in this section, upon
receiving an application, the department shall submit copies for
review to the director of the department of community health or the
local health department designated by the director of the
department of community health, to the city, village, or township
and the county where the project is to be located, to the local
conservation district, to the watershed council established under
part 311, if any, to the local port commission, if any, and to the
persons required to be included in the application pursuant to
section
30104(1). 30104. Each copy of the application shall be
accompanied by a statement that unless a written request is filed
with the department within 20 days after the submission for review,
the department may grant the application without a public hearing
where the project is located. The department may hold a public
hearing upon the written request of the applicant or a riparian
owner or a governmental unit or other person that is entitled to
receive a copy of the application pursuant to this subsection.
(4) After completion of a project for which an application is
approved, the department may cause a final inspection to be made
and certify to the applicant that the applicant has complied with
the department's permit requirements.
(5) At least 10 days' notice of a hearing to be held under
this section shall be given by publication in a newspaper
circulated in the county where the project is to be located, to the
person requesting the hearing, and to the governmental units and
other persons that are entitled to receive a copy of the
application pursuant to subsection (3).
(6) In an emergency, the department may issue a conditional
permit before the expiration of the 20-day period referred to in
subsection (3).
(7) After providing notice and an opportunity for a public
hearing, the department shall establish minor project categories of
activities and projects that are similar in nature, have minimal
adverse environmental effects when performed separately, and will
have only minimal cumulative adverse effects on the environment.
The department may act upon an application received pursuant to
section 30104 for an activity or project within a minor project
category without providing notices pursuant to subsection (3). All
other provisions of this part, except provisions applicable only to
general permits, are applicable to a minor project. The department
shall establish a minor project category under this subsection for
repair or replacement of a failed seawall.
(8) The department, after notice and an opportunity for a
public hearing, shall issue general permits on a statewide basis or
within a local unit of government for projects that are similar in
nature, that will cause only minimal adverse environmental effects
when performed separately, and that will only have minimal
cumulative adverse effects on the environment. Before authorizing a
specific project to proceed under a general permit, the department
may provide notice pursuant to subsection (3) but shall not hold a
public hearing and shall not typically require a site inspection. A
general permit issued under this subsection shall not be valid for
more than 5 years. Among the activities the department may consider
for general permit eligibility under this subsection are the
following:
(a) The removal of qualifying small dams.
(b) The maintenance or repair of an existing pipeline, if the
pipeline is maintained or repaired in a manner to ensure that any
adverse effects on the inland lake or stream will be minimized.
(9) The department may issue, deny, or impose conditions on
project activities authorized under a minor project category or a
general permit if the conditions are designed to remove an
impairment to the inland lake or stream, to mitigate the effects of
the project, or to otherwise improve water quality. The department
may also establish a reasonable time when the proposed project is
to be completed or terminated.
(10) If the department determines that activity in a proposed
project, although within a minor project category or a general
permit, is likely to cause more than minimal adverse environmental
effects, the department may require that the application be
processed according to subsection (3) and reviewed for compliance
with section 30106.
(11) The department shall develop by December 31, 2013 and
maintain a general permit for activities in drains legally
established pursuant to the drain code of 1956, 1956 PA 40, MCL
280.1 to 280.630. The general permit is subject to all of the
following:
(a) The general permit shall cover installation and
replacement of culverts, clear span bridges, and end sections;
culvert extensions; drain realignments; installation of bank
stabilization structures and grade stabilization structures; spoil
placement; and other common drain activities that use best
management practices.
(b) A drain commissioner or drainage board may submit an
application for an authorization under the general permit on a
countywide basis. The department of agriculture and rural
development may submit an application for an authorization under
the general permit on behalf of an intercounty drainage board on a
drainage-district-wide basis.
(c) The department shall grant or deny an authorization under
the general permit by March 1 if the drain commissioner or drainage
board applies for the authorization by the preceding January 20. An
authorization under the general permit is valid until March 30 of
the year after the year in which the authorization is granted.
(d) By December 31 of each year, the drain commissioner or
drainage board shall submit a report to the department that
includes the names of the drains on which activities were performed
under the general permit during that calendar year, the locations
and nature of the activities, and plans and other documentation
demonstrating that those activities met the general permit
requirements.
(e) A drain commissioner or drainage board is not eligible to
be granted a new authorization under the general permit if
significant violations of the general permit under a previous
authorization granted to that drain commissioner or drainage board
have not been corrected.
(12)
As used in this section: , "qualifying
(a) "Failed seawall" means a seawall that has deteriorated to
the point that it no longer effectively breaks the force of waves
or retains soil for the purpose of shore protection and meets
either or both of the following:
(i) The seawall is currently breaking the force of waves and
retaining soil across a minimum of 50% of its length and there is
evidence of a previous seawall along the other 50% of its length.
(ii) The seawall was breaking the force of waves and retaining
soil but was damaged by a single catastrophic event which occurred
within the 2 years prior to the repair or replacement of the
seawall.
(b) "Qualifying small dam" means a dam that meets all of the
following conditions:
(i) (a)
The height of the dam is less than
2 feet.
(ii) (b)
The impoundment from the dam covers
less than 2 acres.
(iii) (c)
The dam does not serve as the first
dam upstream from
the Great Lakes or their connecting waterways.
(iv) (d)
The dam is not serving as a sea
lamprey barrier.
(v) (e)
There are no threatened or
endangered species that
have been identified in the area that will be affected by the
project.
(vi) (f)
There are no known areas of
contaminated sediments in
the area that will be affected by the project.
(vii) (g)
The department has received written
permission for
the removal of the dam from all riparian property owners adjacent
to the dam's impoundment.