SB-1040, As Passed House, June 22, 2006

SUBSTITUTE FOR

SENATE BILL NO. 1040

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 30101, 30104, and 30105 (MCL 324.30101,

324.30104, and 324.30105), section 30101 as amended by 1999 PA 106

and sections 30104 and 30105 as amended by 2004 PA 325.

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)  (c) "Department" means the department of environmental

quality.

(e)  (d) "Fund" means the land and water management permit

fee fund created in section 30113.

     (f) "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.

(g)  (e) "Impoundment" means water held back by a dam, dike,

floodgate, or other barrier.

(h)  (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.

(i)  (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.

(j)  (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.

(k)  (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.

(l)  (j) "Project" means an activity that requires a permit

pursuant to section 30102.

(m)  (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.

(n)  (l) "Riparian owner" means a person who has riparian

rights.

(o)  (m) "Riparian rights" means those rights which are

associated with the ownership of the bank or shore of an inland

lake or stream.

(p)  (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.

(q)  (o) "Structure" includes a marina, wharf, dock, pier,

dam, weir, stream deflector, breakwater, groin, jetty, sewer,

pipeline, cable, and bridge.

(r)  (p) "Upland" means the land area that lies above the

ordinary high-water mark.

     Sec. 30104. (1) A person shall not undertake a project subject

to this part except as authorized by a permit issued by the

department pursuant to part 13. An application for a permit shall

include any information that may be required by the department. If

a project includes activities at multiple locations, 1 application

may be filed for the combined activities.

     (2) Except as provided in subsections (3) and (4), until

October 1, 2008, an application for a permit shall be accompanied

by a fee based on an administrative cost in accordance with the

following schedule:

     (a) For a minor project listed in R 281.816 of the Michigan

administrative code, or a seasonal drawdown or the associated

reflooding, or both, of a dam or impoundment for the purpose of

weed control, a fee of $50.00. However, for a permit for a seasonal

drawdown or associated reflooding, or both, of a dam or impoundment

for the purpose of weed control that is issued for the first time

after October 9, 1995, an initial fee of $500.00 with subsequent

permits for the same purpose being assessed a $50.00 fee.

     (b) For authorization under a general permit for the removal

of a qualifying small dam under section 30105(8), a $50.00 fee.

(c)  (b) For construction or expansion of a marina, a fee of:

     (i) $50.00 for an expansion of 1-10 slips to an existing

permitted marina.

     (ii) $100.00 for a new marina with 1-10 proposed marina slips.

     (iii) $250.00 for an expansion of 11-50 slips to an existing

permitted marina, plus $10.00 for each slip over 50.

     (iv) $500.00 for a new marina with 11-50 proposed marina slips,

plus $10.00 for each slip over 50.

     (v) $1,500.00 if an existing permitted marina proposes

maintenance dredging of 10,000 cubic yards or more or the addition

of seawalls, bulkheads, or revetments of 500 feet or more.

(d)  (c) For renewal of a marina operating permit, a fee of

$50.00.

(e)  (d) For major projects other than a project described in

subdivision  (b)(v)  (c)(v), involving any of the following, a fee

of $2,000.00:

     (i) Dredging of 10,000 cubic yards or more.

     (ii) Filling of 10,000 cubic yards or more.

     (iii) Seawalls, bulkheads, or revetments of 500 feet or more.

     (iv) Filling or draining of 1 acre or more of wetland

contiguous to a lake or stream.

     (v) New dredging or upland boat basin excavation in areas of

suspected contamination.

     (vi) Shore projections, such as groins and underwater

stabilizers, that extend 150 feet or more into a lake or stream.

     (vii) New commercial docks or wharves of 300 feet or more in

length.

     (viii) Stream enclosures 100 feet or more in length.

     (ix) Stream relocations 500 feet or more in length.

     (x) New golf courses.

     (xi) Subdivisions.

     (xii) Condominiums.

(f)  (e) For all other projects not listed in subdivisions

(a) through  (d)  (e), a fee of $500.00.

     (3) A project that requires review and approval under this

part and 1 or more of the following acts or parts of acts is

subject to only the single highest permit fee required under this

part or the following acts or parts of acts:

     (a) Part 303.

     (b) Part 323.

     (c) Part 325.

     (d) Section 3104.

     (e) Section 117 of the land division act, 1967 PA 288, MCL

560.117.

     (4) If work has been done in violation of a permit requirement

under this part and restoration is not ordered by the department,

the department may accept an application for a permit if the

application is accompanied by a fee equal to 2 times the permit fee

required under this section.

     Sec. 30105.  (1) Until October 1, 2003, a person who desires

notification of pending applications may submit a written request

to the department accompanied by an annual fee of $25.00. The

department shall forward all annual fees to the state treasurer for

deposit into the fund. The department shall prepare a monthly list

of the applications made during the previous month and shall

promptly mail copies of the list for the remainder of the calendar

year to the persons who have so requested notice. The monthly list

shall state the name and address of each applicant, the legal

description of the lands included in the applicant's project, and a

summary statement of the purpose of the project.

     (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)  (2) 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 organized 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). 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

person or governmental unit that is entitled to receive a copy of

the application pursuant to this subsection.

(4)  (3) 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)  (4) 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,  and

by mailing copies of the notice to the persons who have requested

the monthly list pursuant to subsection (1), to the person

requesting the hearing, and to the persons and governmental units

that are entitled to receive a copy of the application pursuant to

subsection  (2)  (3).

(6)  (5) In an emergency, the department may issue a

conditional permit before the expiration of the 20-day period

referred to in subsection  (2)  (3).

(7)  (6) The department, by rule promulgated under section

30110(1), may establish minor project categories of activities and

projects that are similar in nature and have minimal adverse

environmental impact. The department may act upon an application

received pursuant to section 30104 for an activity or project

within a minor project category  after an on-site inspection of the

land and water involved without providing notices or holding a

public hearing pursuant to subsection  (2)  (3). A final inspection

or certification of a project completed under a permit granted

pursuant to this subsection is not required, but all other

provisions of this part are applicable to a minor project.

     (8) The department, after notice and an opportunity for a

public hearing, may issue a general permit on a statewide basis or

within a local unit of government for projects that are similar in

nature for the removal of qualifying small dams that will cause

only minimal adverse environmental effects when performed

separately and that will only have minimal cumulative adverse

effect on the environment. A general permit issued under this

subsection shall not be valid for more than 5 years. The department

may impose conditions on the removal of a small dam authorized

under a general permit if the conditions are designed to remove an

impairment to the lake or stream, to mitigate the impact of the

project, or to otherwise restore or rehabilitate the lake or

stream. The department may also establish a reasonable time when

the proposed project is to be completed or terminated. As used in

this subsection, "qualifying small dam" means a dam that meets all

of the following conditions:

     (a) The height of the dam is less than 2 feet.

     (b) The impoundment from the dam covers less than 2 acres.

     (c) The dam does not serve as the first dam upstream from the

Great Lakes or their connecting waterways.

     (d) The dam is not serving as a sea lamprey barrier.

     (e) There are no threatened or endangered species that have

been identified in the area that will be impacted by the project.

     (f) There are no known areas of contaminated sediments in the

area that will be impacted by the project.

     (g) The department has received written permission for the

removal of the dam from all riparian property owners adjacent to

the dam's impoundment.