HB-4444, As Passed Senate, June 16, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 4444

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 9101, 9105, 9106, 9110, and 9113 (MCL

324.9101, 324.9105, 324.9106, 324.9110, and 324.9113), section 9101

as amended by 2001 PA 227 and sections 9105, 9106, 9110, and 9113

as amended by 2000 PA 504.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 9101. (1) "Agricultural practices" means all land farming

operations except the plowing or tilling of land for the purpose of

crop production or the harvesting of crops.

     (2) "Authorized public agency" means a state agency or an

agency of a local unit of government authorized under section 9110

to implement soil erosion and sedimentation control procedures with

regard to earth changes undertaken by it.

     (3) "Conservation district" means a conservation district

authorized under part 93.

     (4) "Consultant" means either of the following:

     (a) An individual who has a current certificate of training

under section 9123.

     (b) A person who employs 1 or more individuals who have

current certificates of training under section 9123.

     (5) "County agency" means an officer, board, commission,

department, or other entity of county government.

     (6) "County enforcing agency" means a county agency or a

conservation district designated by a county board of commissioners

under section 9105.

     (7) "County program" or "county's program" means a soil

erosion and sedimentation control program established under section

9105.

     (8) "Department" means the department of environmental

quality.

     (9) "Earth change" means a human-made change in the natural

cover or topography of land, including cut and fill activities,

which may result in or contribute to soil erosion or sedimentation

of the waters of the state. Earth change does not include the

practice of plowing and tilling soil for the purpose of crop

production.

     (10) "Gardening" means activities necessary to the growing of

plants for personal use, consumption, or enjoyment.

(11)  (10) "Local ordinance" means an ordinance enacted by a

local unit of government under this part providing for soil erosion

and sedimentation control.

(12)  (11) "Municipal enforcing agency" means an agency

designated by a municipality under section 9106 to enforce a local

ordinance.

(13)  (12) "Municipality" means any of the following:

     (a) A city.

     (b) A village.

     (c) A charter township.

     (d) A general law township that is located in a county with a

population of 200,000 or more.

(14)  (13) "Rules" means the rules promulgated pursuant to

the administrative procedures act of 1969, 1969 PA 306, MCL 24.201

to 24.328.

     (15) "Seawall maintenance" means an earth change activity

landward of the seawall.

(16)  (14) "Sediment" means solid particulate matter,

including both mineral and organic matter, that is in suspension in

water, is being transported, or has been removed from its site of

origin by the actions of wind, water, or gravity and has been

deposited elsewhere.

(17)  (15) "Soil erosion" means the wearing away of land by

the action of wind, water, gravity, or a combination of wind,

water, or gravity.

(18)  (16) "State agency" means a principal state department

or a state public university.

(19)  (17) "Violation of this part" or "violates this part"

means a violation of this part, the rules promulgated under this

part, a permit issued under this part, or a local ordinance enacted

under this part.

(20)  (18) "Waters of the state" means the Great Lakes and

their connecting waters, inland lakes and streams as defined in

rules promulgated under this part, and wetlands regulated under

part 303.

     Sec. 9105. (1) Subject to subsection (6), a county is

responsible for the administration and enforcement of this part and

the rules promulgated under this part throughout the county except

as follows:

     (a) Within a municipality that has assumed the responsibility

for soil erosion and sedimentation control under section 9106.

     (b) With regard to earth changes of authorized public

agencies.

     (2) Subject to subsection (3), the county board of

commissioners of each county, by resolution, shall designate a

county agency, or a conservation district upon the concurrence of

the conservation district, as the county enforcing agency

responsible for administration and enforcement of this part and the

rules promulgated under this part in the name of the county. The

resolution may set forth a schedule of fees for inspections, plan

reviews, and permits and may set forth other matters relating to

the administration and enforcement of the county program and this

part and the rules promulgated under this part.

     (3) In lieu of or in addition to a resolution provided for in

subsection (2), the county board of commissioners of a county may

provide by ordinance for soil erosion and sedimentation control in

the county. An ordinance adopted under this subsection may be more

restrictive than, but shall not make lawful that which is unlawful

under, this part and the rules promulgated under this part. If an

ordinance adopted under this subsection is more restrictive than

this part and the rules promulgated under this part, the county

enforcing agency shall notify a person receiving a permit under the

ordinance that the ordinance is more restrictive than this part and

the rules promulgated under this part. The ordinance shall

incorporate by reference the rules promulgated under this part that

do not conflict with a more restrictive ordinance and may set forth

such other matters as the county board of commissioners considers

necessary or desirable. The ordinance may provide penalties for a

violation of the ordinance that are consistent with section 9121.

     (4) A copy of a resolution or ordinance adopted under this

section and all subsequent amendments to the resolution or

ordinance shall be forwarded to the department for the department's

review and approval. The department shall forward a copy to the

conservation district for that county for review and comment.  Not

later than December 31, 2001, the department shall prepare and

submit a report to the standing committees of the senate and the

house of representatives with jurisdiction over issues primarily

related to natural resources and the environment. This report shall

detail the number and the substance of complaints that have been

received by the department related to county ordinances that have

been adopted under subsection (3) that are more restrictive than

this part and the rules promulgated under this part.

     (5) Two or more counties may provide for joint enforcement and

administration of this part and the rules promulgated under this

part by entering into an interlocal agreement pursuant to the urban

cooperation act of 1967, 1967 (Ex Sess) PA 7, MCL 124.501 to

124.512.

     (6)  Within 3 years after the effective date of the amendatory

act that added this subsection, the department shall conduct an

initial review of each county's soil erosion and sedimentation

control program in accordance with a schedule established by the

department. If the department approves a county program, its

approval is valid for a 5-year period. After the initial review,

the The department shall conduct a review of a county's program

every 5 years. The review shall be conducted at least 6 months

before the expiration of each succeeding 5-year period. The

department shall approve a county's program if all of the following

conditions are met:

     (a) The county has passed a resolution or enacted an ordinance

as provided in this section.

     (b) The individuals with decision-making authority who are

responsible for administering the county program have current

certificates of training under section 9123.

     (c) The county has effectively administered and enforced the

county program in the past 5 years or has implemented changes in

its administration or enforcement procedures that the department

determines will result in the county effectively administering and

enforcing the county program. In determining whether the county has

met the requirement of this subdivision, the department shall

consider all of the following:

     (i) Whether a mechanism is in place to provide funding to

administer the county's program.

     (ii) Whether the county has conducted adequate inspections to

assure minimization of soil erosion and off-site sedimentation.

     (iii) The effectiveness of the county's past compliance and

enforcement efforts.

     (iv) The adequacy and effectiveness of the applications and

soil erosion and sedimentation control plans being accepted by the

county.

     (v) The adequacy and effectiveness of the permits issued by

the county and the inspections being performed by the county.

     (vi) The conditions at construction sites under the

jurisdiction of the county as documented by departmental

inspections.

     (7) Following a review under subsection (6), the department

shall notify the county of the results of its review and whether

the department proposes to approve or disapprove the county's

program. Within 30 days of receipt of the notice under this

subsection, a county may request and the department shall hold an

informal meeting to discuss the review and the proposed action by

the department.

     (8) Following the meeting under subsection (7), if requested,

and consideration of the review under subsection (6), if the

department does not approve a county's program, the department

shall enter an order, stipulation, or consent agreement under

section  9112(2)  9112(7) placing the county on probation. In

addition, at any time that the department determines that a county

that was previously approved by the department under subsection (6)

is not satisfactorily administering and enforcing the county's

program, the department shall enter into an order, stipulation, or

consent agreement under section  9112(2)  9112(7) placing the

county on probation. During the 6-month period after a county is

placed on probation, the department shall consult with the county

on how the county could change its administration of the county

program in a manner that would result in its approval.

     (9) Within 6 months after a county has been placed on

probation under subsection (8), the county may notify the

department that it intends to hire a consultant to administer the

county's program. If, within 60 days after notifying the

department, the county hires a consultant that is acceptable to the

department, then within 1 year after the county hires the

consultant, the department shall conduct a review of the county's

program to determine whether or not the county program can be

approved.

     (10) If any of the following occur, the department shall hire

a consultant to administer the county's program:

     (a) The county does not notify the department of its intent to

hire a consultant under subsection (9).

     (b) The county does not hire a consultant that is acceptable

to the department within 60 days after notifying the department of

its intent to hire a consultant under subsection (9).

     (c) The county remains unapproved following the department's

review under subsection (9).

     (11) Upon hiring a consultant under subsection (10), the

department may establish a schedule of fees for inspections, review

of soil erosion and sedimentation control plans, and permits for

the county's program that will provide sufficient revenues to pay

for the cost of the contract with the consultant, or the department

may bill the county for the cost of the contract with the

consultant. As used in this subsection, "cost of the contract"

means the actual cost of a contract with a consultant plus the

documented costs to the department in administering the contract,

but not to exceed 10% of the actual cost of the contract.

     (12) At any time that a county is on probation as provided for

in this section, the county may request the department to conduct a

review of the county's program. If, upon such review, the county

has implemented appropriate changes to the county's program, the

department shall approve the county's program. If the department

approves a county's program under this subsection, the department

shall rescind its order, stipulation, or consent agreement that

placed the county on probation.

     Sec. 9106. (1) Subject to subsection (3), a municipality by

ordinance may provide for soil erosion and sedimentation control on

public and private earth changes within its boundaries except that

a township ordinance shall not be applicable within a village that

has in effect such an ordinance. An ordinance may be more

restrictive than, but shall not make lawful that which is unlawful

under, this part and the rules promulgated under this part. If an

ordinance adopted under this section is more restrictive than this

part and the rules promulgated under this part, the municipal

enforcing agency shall notify a person receiving a permit under the

ordinance that the ordinance is more restrictive than this part and

the rules promulgated under this part. The ordinance shall

incorporate by reference the rules promulgated under this part that

do not conflict with a more restrictive ordinance, shall designate

a municipal enforcing agency responsible for administration and

enforcement of the ordinance, and may set forth such other matters

as the legislative body considers necessary or desirable. The

ordinance shall be applicable and shall be enforced with regard to

all private and public earth changes within the municipality except

earth changes by an authorized public agency. The municipality may

consult with a conservation district for assistance or advice in

the preparation of the ordinance. The ordinance may provide

penalties for a violation of the ordinance that are consistent with

section 9121.

     (2) An ordinance related to soil erosion and sedimentation

control that is not approved by the department as conforming to the

minimum requirements of this part and the rules promulgated under

this part has no force or effect. A municipality shall submit a

copy of its proposed ordinance or of a proposed amendment to its

ordinance to the department for approval before adoption. The

department shall forward a copy to the county enforcing agency of

the county in which the municipality is located and the appropriate

conservation district for review and comment. Within 90 days after

the department receives an existing ordinance, proposed ordinance,

or amendment, the department shall notify the clerk of the

municipality of its approval or disapproval along with

recommendations for revision if the ordinance, proposed ordinance,

or amendment does not conform to the minimum requirements of this

part or the rules promulgated under this part. If the department

does not notify the clerk of the local unit within the 90-day

period, the ordinance, proposed ordinance, or amendment shall be

considered to have been approved by the department.

     (3)  After a date determined by a schedule established by the

department, but not later than 3 years after the effective date of

the amendatory act that added this subsection, a A municipality

shall not administer and enforce this part or the rules promulgated

under this part or a local ordinance unless the department has

approved the municipality. An approval under this section is valid

for 5 years, after which the department shall review the

municipality for reapproval. At least 6 months before the

expiration of each succeeding 5-year approval period, the

department shall complete a review of the municipality for

reapproval. The department shall approve a municipality if all of

the following conditions are met:

     (a) The municipality has enacted an ordinance as provided in

this section that is at least as restrictive as this part and the

rules promulgated under this part.

     (b) The individuals with decision-making authority who are

responsible for administering the soil erosion and sedimentation

control program for the municipality have current certificates of

training under section 9123.

     (c) The municipality has submitted evidence of its ability to

effectively administer and enforce a soil erosion and sedimentation

control program. In determining whether the municipality has met

the requirements of this subdivision, the department shall consider

all of the following:

     (i) Whether a mechanism is in place to provide funding to

administer the municipality's soil erosion and sedimentation

control program.

     (ii) The adequacy of the documents proposed for use by the

municipality including, but not limited to, application forms, soil

erosion and sedimentation control plan requirements, permit forms,

and inspection reports.

     (iii) If the municipality has previously administered a soil

erosion and sedimentation control program, whether the municipality

effectively administered and enforced the program in the past or

has implemented changes in its administration or enforcement

procedures that the department determines will result in the

municipality effectively administering and enforcing a soil erosion

and sedimentation control program in compliance with this part and

the rules promulgated under this part. In determining whether the

municipality has met the requirement of this subparagraph, the

department shall consider all of the following:

     (A) Whether the municipality has had adequate funding to

administer the municipality's soil erosion and sedimentation

control program.

     (B) Whether the municipality has conducted adequate

inspections to assure minimization of soil erosion and off-site

sedimentation.

     (C) The effectiveness of the municipality's past compliance

and enforcement efforts.

     (D) The adequacy and effectiveness of the applications and

soil erosion and sedimentation control plans being accepted by the

municipality.

     (E) The adequacy and effectiveness of the permits issued by

the municipality and the inspections being performed by the

municipality.

     (F) The conditions at construction sites under the

jurisdiction of the municipality as documented by departmental

inspections.

     (4) If the department determines that a municipality is not

approved under subsection (3) or that a municipality that was

previously approved under subsection (3) is not satisfactorily

administering and enforcing this part and the rules promulgated

under this part, the department shall enter an order, stipulation,

or consent agreement under section  9112(2)  9112(7) denying the

municipality authority or revoking the municipality's authority to

administer a soil erosion and sedimentation control program. Upon

entry of this order, stipulation, or consent agreement, the county

program for the county in which the municipality is located becomes

operative within the municipality.

     (5) A municipality that elects to rescind its ordinance shall

notify the department. Upon rescission of its ordinance, the county

program for the county in which the municipality is located becomes

operative within the municipality.

     (6) A municipality that rescinds its ordinance or is not

approved by the department to administer the program shall retain

jurisdiction over projects under permit at that time. The

municipality shall retain jurisdiction until the projects are

completed and stabilized or the county agrees to assume

jurisdiction over the permitted earth changes.

     Sec. 9110. (1) Subject to subsection (4), a state agency or an

agency of a local unit of government may apply to the department

for designation as an authorized public agency by submitting to the

department the soil erosion and sedimentation control procedures

governing all earth changes normally undertaken by the agency. If

the applicant is an agency of a local unit of government, the

department shall submit the procedures to the county enforcing

agency and the appropriate conservation district for review. The

county enforcing agency and the conservation district shall submit

their comments on the procedures to the department within 60 days.

If the applicant is a state agency, the department shall submit the

procedures to the department of agriculture for review, and the

department of agriculture shall submit its comments on the

procedures to the department within 60 days.

     (2) Subject to subsection (4), if the department finds that

the soil erosion and sedimentation control procedures of the state

agency or the agency of the local unit of government meet the

requirements of this part and rules promulgated under this part,

the department shall designate the agency as an authorized public

agency.

     (3) Subject to subsection (4), after approval of the

procedures and designation as an authorized public agency pursuant

to subsection  (1) or (2), all earth changes maintained or

undertaken by the authorized public agency shall be undertaken

pursuant to the approved procedures. If determined necessary by the

department and upon request of an authorized public agency, the

department may grant a variance from the provisions of this

subsection.

     (4)  After a date determined by a schedule established by the

department, but not later than 3 years after the effective date of

the amendatory act that added this subsection, a  A state agency or

an agency of a local unit of government shall not administer and

enforce this part and the rules promulgated under this part as an

authorized public agency unless the department has approved the

agency under this section. An approval under this section is valid

for 5 years, after which the department shall review the agency for

reapproval. At least 6 months before the expiration of each

succeeding 5-year period, the department shall complete a review of

the authorized public agency for reapproval. The department shall

approve a state agency or an agency of a local unit of government

if all of the following conditions are met:

     (a) The agency has adopted soil erosion and sedimentation

control procedures that are at least as restrictive as this part

and the rules promulgated under this part.

     (b) The individuals with decision-making authority who are

responsible for administering the soil erosion and sedimentation

control procedures have current certificates of training under

section 9123.

     (c) The agency has submitted evidence of its ability to

effectively administer soil erosion and sedimentation control

procedures. In determining whether the agency has met the

requirement of this subdivision, the department shall consider all

of the following:

     (i) Funding to administer the agency's soil erosion and

sedimentation control program.

     (ii) The agency's plans for inspections to assure minimization

of soil erosion and off-site sedimentation.

     (iii) The adequacy of the agency's soil erosion and

sedimentation control procedures.

     (iv) If the agency has previously administered soil erosion and

sedimentation control procedures, the agency has effectively

administered these procedures or has implemented changes in their

administration that the department determines will result in the

agency effectively administering the soil erosion and sedimentation

control procedures. In determining whether the agency has met the

requirement of this subparagraph, the department shall consider all

of the following:

     (A) Whether the agency has had adequate funding to administer

the agency's soil erosion and sedimentation control program.

     (B) Whether the agency has conducted adequate inspections to

assure minimization of soil erosion and off-site sedimentation.

     (C) The effectiveness of the agency's past compliance and

enforcement efforts.

     (D) The adequacy of the agency's soil erosion and

sedimentation control plans and procedures as required by rule.

     (E) The conditions at construction sites under the

jurisdiction of the agency as documented by departmental

inspections.

     (5) If the department determines that a state agency or an

agency of a local unit of government is not approved under

subsection (4) or that a state agency or an agency of a local unit

of government that was previously approved under subsection (4) is

not satisfactorily administering and enforcing this part and the

rules promulgated under this part, the department shall enter an

order, stipulation, or consent agreement under section  9112(2)

9112(7) denying or revoking the designation of the state agency or

agency of a local unit of government as an authorized public

agency.

     Sec. 9113. (1) Notwithstanding the existence or pursuit of any

other remedy, the department or a county enforcing agency or

municipal enforcing agency may maintain an action in its own name

in a court of competent jurisdiction for an injunction or other

process against a person to restrain or prevent violations of this

part.

     (2)  An At any reasonable time, an agent appointed by the

department, a county enforcing agency, or a municipal enforcing

agency may enter  at all reasonable times in or upon any private

or public property for the purpose of inspecting and investigating

conditions or practices that may be in violation of this part.

However, an investigation or inspection under this subsection shall

comply with the United States constitution and the state

constitution of 1963.

     Enacting section 1. This amendatory act does not take effect

unless Senate Bill No. 282 of the 93rd Legislature is enacted into

law.