SENATE BILL No. 1311

June 8, 2000, Introduced by Senators PETERS, DE BEAUSSAERT, A. SMITH and YOUNG

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 35301, 63701, 63702, 63704, 63708, 63709,

and 63711 (MCL 324.35301, 324.63701, 324.63702, 324.63704,

324.63708, 324.63709, and 324.63711), section 35301 as amended by

1995 PA 262 and sections 63701, 63702, 63704, 63708, 63709, and

63711 as added by 1995 PA 57.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 Sec. 35301. As used in this part:

2 (a) "Contour change" includes any grading, filling, digging,

3 or excavating that significantly alters the physical characteris-

4 tic of a critical dune area, except that which is involved in

5 sand dune mining as defined in part 637.

6 (b) "Crest" means the line at which the first lakeward

7 facing slope of a critical dune ridge breaks to a slope of less

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1 than 1-foot vertical rise in a 5-1/2-foot horizontal plane for a

2 distance of at least 20 feet, if the areal extent where this

3 break occurs is greater than 1/10 acre in size.

4 (c) "Critical dune area" means a geographic area designated

5 in the "atlas of critical dune areas" dated February 1989, that

6 WHICH was prepared by the department, AS MODIFIED BY THE DOCUMENT

7 ENTITLED "EVALUATION OF CRITICAL DUNE AREAS DESIGNATED UNDER

8 PART 353 (SAND DUNE PROTECTION AND MANAGEMENT) OF THE NATURAL

9 RESOURCES AND ENVIRONMENTAL PROTECTION ACT 1994 PA 451: FINAL

10 REPORT." CENTER FOR REMOTE SENSING, MICHIGAN STATE UNIVERSITY.

11 EAST LANSING, MICHIGAN. JUNE 1996.

12 (d) "Department" means the department of environmental

13 quality.

14 (e) "Foredune" means 1 or more low linear dune ridges that

15 are parallel and adjacent to the shoreline of a Great Lake and

16 are rarely greater than 20 feet in height. The lakeward face of

17 a foredune is often gently sloping and may be vegetated with dune

18 grasses and low shrub vegetation or may have an exposed sand

19 face.

20 (f) "Model zoning plan" means the model zoning plan provided

21 for in sections 35312 to 35324.

22 (g) "Planning commission" means the body or entity within a

23 local government that is responsible for zoning and land use

24 planning for the local unit of government.

25 (h) "Restabilization" means restoration of the natural con-

26 tours of a critical dune to the extent practicable, and the

27 restoration of the protective vegetative cover of a critical dune

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1 through the establishment of indigenous vegetation, and the

2 placement of snow fencing or other temporary sand trapping mea-

3 sures for the purpose of preventing erosion, drifting, and slump-

4 ing of sand.

5 (i) "Special use project" means any of the following:

6 (i) A proposed use in a critical dune area for an industrial

7 or commercial purpose regardless of the size of the site.

8 (ii) A multifamily use of more than 3 acres.

9 (iii) A multifamily use of 3 acres or less if the density of

10 use is greater than 4 individual residences per acre.

11 (iv) A proposed use in a critical dune area, regardless of

12 size of the use, that the planning commission, or the department

13 if a local unit of government does not have an approved zoning

14 ordinance, determines would damage or destroy features of archae-

15 ological or historical significance.

16 (j) "Use" means a developmental, silvicultural, or recrea-

17 tional activity done or caused to be done by a person that sig-

18 nificantly alters the physical characteristic of a critical dune

19 area or a contour change done or caused to be done by a person.

20 Use does not include sand dune mining as defined in part 637.

21 (k) "Zoning ordinance" means an ordinance of a local unit of

22 government that regulates the development of critical dune areas

23 within the local unit of government pursuant to the requirements

24 of this part.

25 Sec. 63701. As used in this part:

26 (a) "Active cell-unit" means a cell-unit set forth in the

27 approved progressive cell-unit mining and reclamation plan

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1 provided for in section 63706(1), in which vegetation and topsoil

2 have been removed in preparation for sand dune mining or sand

3 removal has been initiated after the date of issuance of the sand

4 dune mining permit. Vegetation removal does not preclude the

5 removal of marketable forest products from a cell-unit, if the

6 removal maintains the ground cover and topsoil within the

7 cell-unit in stable condition.

8 (b) "Administratively complete" means an application for a

9 sand dune mining permit that is determined by the department to

10 satisfy all of the conditions of this part and rules promulgated

11 under this part.

12 (c) "Barrier dune" means the first landward sand dune forma-

13 tion along the shoreline of a Great Lake or a sand dune formation

14 designated by the department.

15 (d) "Beneficiation" means to process sand for any of the

16 following purposes, but does not include the drying process:

17 (i) Regulating the grain size of the desired product.

18 (ii) Removing unwanted constituents.

19 (iii) Improving the quality and purity of the desired

20 product.

21 (e) "Cell-unit" means a subunit of the total sand dune

22 mining project as determined in size and location by the

23 operator. A cell-unit shall not exceed 10 acres in size for sand

24 dune mining operations that commence operation after March 31,

25 1977 or for the expansion of sand dune mining operations that

26 existed before March 31, 1977. A cell-unit shall not exceed 30

27 acres in size for operations that existed before March 31, 1977.

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1 (f) "Conformance bond" means a surety bond that is executed

2 by a surety company authorized to do business in this state,

3 cash, certificates of deposit, letters of credit, or other secur-

4 ities that are filed by an operator to ensure compliance with

5 this part, rules promulgated under this part, or conditions of a

6 sand dune mining permit.

7 (g) "Environmental elements" means the biological, physical,

8 and chemical characteristics of the environment, including but

9 not limited to the following:

10 (i) Watersheds.

11 (ii) Water bodies.

12 (iii) Forests.

13 (iv) Existing areas maintained for public recreation.

14 (v) Shorelands.

15 (vi) Habitat areas.

16 (h) "Great Lakes" means any of the Great Lakes that have a

17 shoreline within this state.

18 (i) "Interim cell-unit status" means a cell-unit as set

19 forth in an approved progressive cell-unit mining and reclamation

20 plan provided for in section 63706(1), in which all sand dune

21 mining and reclamation within the cell-unit has been completed,

22 but the vegetation has not sustained itself through 1 full grow-

23 ing season. A cell-unit placed in interim cell-unit status is

24 required to retain the conformance bond provided in section 63712

25 until reclassification by the department as provided in section

26 63712(5). Each sand dune mining activity shall be limited to no

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1 more than 3 cell-units in interim cell-unit status at any 1

2 time.

3 (j) "Operator" means an owner or lessee of mineral rights or

4 any other person engaged in or preparing to engage in sand dune

5 mining activities with respect to mineral rights within a sand

6 dune area.

7 (k) "Sand dune area" means that area designated by the

8 department that includes those geomorphic features composed pri-

9 marily of sand, whether windblown or of other origin and that

10 lies within 2 miles of the ordinary high-water mark on a Great

11 Lake as defined in section 32502, and includes critical dune

12 areas as defined in part 353.

13 (l) "Sand dune mining" means the removal of sand from sand

14 dune areas for commercial or industrial purposes, or both. The

15 removal of sand from sand dune areas in volumes of less than

16 3,000 tons is not sand dune mining if the removal is a 1-time

17 occurrence and the reason the sand is removed is not for the

18 direct use for an industrial or commercial purpose. However, the

19 removal of any volume of sand that is not sand dune mining within

20 a critical dune area as defined in part 353 is subject to the

21 critical dune protection provisions of part 353. The department

22 may authorize in writing the removal of more than 3,000 tons of

23 sand without a sand dune mining permit issued pursuant to section

24 63704 for a purpose related to protecting an occupied dwelling or

25 other structure from property damage related to the migration of

26 sand or the instability of sand. This removal may be for more

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1 than 1 occurrence, but a written authorization from the

2 department is required for each removal.

3 (m) "Water table" means the surface in an unconfined aquifer

4 at which the pressure is atmospheric. The water table is found

5 at the level at which water stands in wells that penetrate the

6 aquifer.

7 Sec. 63702. (1) Notwithstanding any other provision of

8 this part, the department shall not issue a sand dune mining

9 permit within a critical dune area as defined in part 353. after

10 July 5, 1989, except under either of the following

11 circumstances:

12 (a) The operator seeks to renew or amend a sand dune mining

13 permit that was issued prior to July 5, 1989, subject to the cri-

14 teria and standards applicable to a renewal or amendatory

15 application.

16 (b) The operator holds a sand dune mining permit issued pur-

17 suant to section 63704 and is seeking to amend the mining permit

18 to include land that is adjacent to property the operator is per-

19 mitted to mine, and prior to July 5, 1989 the operator owned the

20 land or owned rights to mine dune sand in the land for which the

21 operator seeks an amended permit.

22 (2) As used in this section, "adjacent" means land that is

23 contiguous with the land for which the operator holds a sand dune

24 mining permit issued pursuant to section 63704, provided no land

25 or space, including a highway or road right-of-way, exists

26 between the property on which sand dune mining is authorized and

27 the adjacent land.

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1 Sec. 63704. (1) After July 1, 1977 UNTIL DECEMBER 31,

2 2005, a person or operator shall not engage in sand dune mining

3 within Great Lakes sand dune areas without first obtaining a

4 permit for that purpose from the department. ON AND AFTER

5 JANUARY 1, 2006, A PERSON SHALL NOT ENGAGE IN SAND DUNE MINING

6 WITHIN GREAT LAKES SAND DUNE AREAS.

7 (2) Prior to receiving a permit from the department, a

8 person or operator shall submit all of the following:

9 (a) A permit application on a form provided by the

10 department.

11 (b) An environmental impact statement of the proposed mining

12 activity as prescribed by section 63705.

13 (c) A progressive cell-unit mining and reclamation plan for

14 the proposed mining activity as prescribed by section 63706.

15 (d) A 15-year mining plan as prescribed by section 63707.

16 Sec. 63708. (1) A EXCEPT AS PROVIDED IN SUBSECTION (6), A

17 sand dune mining permit issued by the department is valid for not

18 more than 5 years. A sand dune mining permit shall be renewed if

19 the sand dune mining activities have been carried out in compli-

20 ance with this part, the rules promulgated under this part, and

21 the conditions of the sand dune mining permit issued by the

22 department.

23 (2) The sand dune mining permit shall state any conditions,

24 limitations, or other restrictions determined by the department,

25 including any setback from the ordinary high-water mark of a

26 Great Lake for the protection of the barrier dune.

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1 (3) In granting a sand dune mining permit, if the department

2 allows for the removal of all or a portion of the barrier dune

3 pursuant to this part, it shall submit to the commission written

4 reasons for permitting the removal.

5 (4) The department shall approve or deny a sand dune mining

6 permit application in writing within 120 days after the applica-

7 tion is received and is determined by the department to be admin-

8 istratively complete. If a sand dune mining permit is denied,

9 the reasons shall be stated in a written report.

10 (5) The department shall provide a list of all pending sand

11 dune mining applications upon a request from a person. The list

12 shall give the name and address of each applicant, the legal

13 description of the lands included in the project, and a summary

14 statement of the purpose of the application.

15 (6) NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART, A SAND

16 DUNE MINING PERMIT EXPIRES IF SAND DUNE MINING HAS NOT OCCURRED

17 DURING A 1-YEAR PERIOD. UPON EXPIRATION OF A SAND DUNE MINING

18 PERMIT UNDER THIS SUBSECTION, THE LANDOWNER OR OPERATOR SHALL

19 BEGIN RECLAMATION ACTIVITIES AS PROVIDED IN THIS PART.

20 Sec. 63709. The department shall deny a sand dune mining

21 permit if, upon review of the environmental impact statement, it

22 determines that ANY OF THE FOLLOWING:

23 (A) THAT the proposed sand dune mining activity is likely to

24 pollute, impair, or destroy the air, water, or other natural

25 resources or the public trust in those resources, as provided by

26 part 17.

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1 (B) THAT THE PROPOSED SAND DUNE MINING ACTIVITY IS NOT

2 COMPATIBLE WITH ADJACENT EXISTING LAND USES.

3 (C) THAT THE PROPOSED SAND DUNE MINING ACTIVITY WILL

4 ADVERSELY AFFECT ANY OF THE FOLLOWING:

5 (i) FLORA, FAUNA, OR WILDLIFE HABITATS.

6 (ii) GROUNDWATER SUPPLY, LEVEL, QUALITY, AND FLOW WITHIN

7 1,000 FEET OF THE PROPOSED SAND DUNE MINING ACTIVITY.

8 (iii) ADJACENT SURFACE RESOURCES.

9 (iv) AIR QUALITY WITHIN 1,000 FEET OF THE PROPOSED SAND DUNE

10 MINING ACTIVITY.

11 (D) THAT THE PROPOSED SAND DUNE MINING ACTIVITY WILL BE

12 LOCATED WITHIN ANY OF THE FOLLOWING:

13 (i) ONE THOUSAND FEET OF A RESIDENCE.

14 (ii) TWO THOUSAND FEET OF A SCHOOL.

15 (iii) FIVE HUNDRED FEET OF A COMMERCIAL DEVELOPMENT.

16 Sec. 63711. (1) For purposes of surveillance, monitoring,

17 administration, and enforcement of this part, an operator is

18 assessed a fee of not more than 10 cents THE DEPARTMENT SHALL

19 ASSESS EACH OPERATOR AN ADMINISTRATIVE FEE OF $5.00 per ton of

20 sand mined from a sand dune area for the calendar year reported

21 as described in subsection (2). Funds collected by the assess-

22 ment of the fee shall not exceed the actual costs to the depart-

23 ment of implementing the sections of this part that pertain to

24 sand dune mining. Any fees collected under this subsection that

25 are unexpended at the end of a fiscal year shall be credited to a

26 separate fund of the department, carried over to the succeeding

27 fiscal year, and deducted from the amount appropriated for that

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1 year for surveillance, monitoring, administration, and

2 enforcement of this part for purposes of computing the fee to be

3 assessed for that year. ADMINISTRATIVE FEES COLLECTED UNDER THIS

4 SECTION SHALL BE FORWARDED TO THE STATE TREASURER FOR DEPOSIT

5 INTO THE SAND DUNE PROTECTION FUND CREATED IN SUBSECTION (8).

6 (2) An operator shall file an annual report on or before

7 January 31 of each year. The report shall show the areas mined

8 and describe the progress of restoration and reclamation activi-

9 ties of the operator for the preceding calendar year. The report

10 shall contain both of the following:

11 (a) The number of tons of sand mined from a sand dune area.

12 (b) Location THE LOCATION of the sand dune area.

13 (3) The ADMINISTRATIVE fee described in ASSESSED UNDER

14 subsection (1) shall be IS due not more than 30 days after the

15 department sends written notice to the operator of the amount

16 due.

17 (4) The surveillance ADMINISTRATIVE fee and annual report

18 required by this section is confidential and shall not be avail-

19 able for public inspection without the written consent of the

20 person filing the fee and report, except in accordance with judi-

21 cial order.

22 (5) Failure to submit an annual report in compliance with

23 THIS SECTION AND ANY rules promulgated by the department consti-

24 tutes grounds for revocation of a permit.

25 (6) A penalty equal to 10% of the amount due, or $1,000.00,

26 whichever is greater, shall be assessed against the operator for

27 a AN ADMINISTRATIVE fee that is not paid when due. An unpaid

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1 ADMINISTRATIVE fee and penalty shall constitute a debt and

2 become the basis of a judgment against the operator. Penalties

3 paid pursuant to RECOVERED UNDER this section shall be used

4 for the implementation, administration, and enforcement of this

5 part FORWARDED TO THE STATE TREASURER FOR DEPOSIT INTO THE SAND

6 DUNE PROTECTION FUND CREATED IN SUBSECTION (8).

7 (7) Records upon which the annual report is based shall be

8 preserved for 3 years and are subject to audit by the

9 department.

10 (8) THE SAND DUNE PROTECTION FUND IS CREATED WITHIN THE

11 STATE TREASURY. THE STATE TREASURER MAY RECEIVE MONEY OR OTHER

12 ASSETS FROM ANY SOURCE FOR DEPOSIT INTO THE SAND DUNE PROTECTION

13 FUND. THE STATE TREASURER SHALL DIRECT THE INVESTMENT OF THE

14 SAND DUNE PROTECTION FUND. THE STATE TREASURER SHALL CREDIT TO

15 THE SAND DUNE PROTECTION FUND INTEREST AND EARNINGS FROM SAND

16 DUNE PROTECTION FUND INVESTMENTS. MONEY IN THE SAND DUNE PROTEC-

17 TION FUND AT THE CLOSE OF THE FISCAL YEAR SHALL REMAIN IN THE

18 SAND DUNE PROTECTION FUND AND SHALL NOT LAPSE TO THE GENERAL

19 FUND. THE DEPARTMENT SHALL EXPEND MONEY FROM THE SAND DUNE PRO-

20 TECTION FUND, UPON APPROPRIATION, ONLY FOR 1 OR MORE OF THE FOL-

21 LOWING PURPOSES:

22 (A) NOT LESS THAN 20% FOR MORE SURVEILLANCE, MONITORING,

23 ADMINISTRATION, AND ENFORCEMENT OF THIS PART.

24 (B) NOT LESS THAN 80% FOR ACQUISITION OF LAND CONTAINING

25 CRITICAL DUNE AREAS. LAND ACQUIRED UNDER THIS SUBDIVISION SHALL

26 BE HELD IN PUBLIC OWNERSHIP FOR THE PROTECTION OF THE CRITICAL

27 DUNE AREAS.

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1 (9) (8) The department shall annually prepare and submit

2 to the house of representatives and senate standing committees

3 with jurisdiction over subject areas related to natural resources

4 and the environment a report on the sand mining surveillance

5 activities undertaken by the department for the immediately pre-

6 ceding year and the cost of those activities.

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