October 26, 2005, Introduced by Reps. Kathleen Law, Anderson, Murphy, Alma Smith, Gillard, Tobocman, Byrum, Gonzales, Donigan, Vagnozzi, Leland, Cushingberry, Brandenburg, Miller, Lemmons, Jr., Hopgood, Stewart and Nofs and referred to the Committee on Natural Resources, Great Lakes, Land Use, and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 32701, 32702, 32705, 32706, 32707, 32708,
32709, 32710, 32711, 32712, and 32713 (MCL 324.32701, 324.32702,
324.32705, 324.32706, 324.32707, 324.32708, 324.32709, 324.32710,
324.32711, 324.32712, and 324.32713), sections 32701, 32705, 32707,
and 32708 as amended by 2003 PA 148, sections 32702, 32709, 32710,
32711, and 32713 as added by 1995 PA 59, and sections 32706 and
32712 as amended by 1996 PA 434, and by adding sections 32702a,
32712a, 32712b, 32712c, 32712d, 32712e, 32712f, 32713a, 32715,
32716, and 32717.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 32701. As used in this part:
(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 animals, 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.
(b) "Consumptive use" means that portion of water withdrawn or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.
(c) "Department" means the department of environmental
quality.
(d) "Diversion" means a transfer of water from the Great Lakes
basin into another watershed outside the Great Lakes basin.
(e) (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.
(f) "Generally accepted conservation practices" means any
beneficial reduction in water loss, waste, or use accomplished by
the implementation of water management practices and water
efficiency measures that are economically feasible based on a cost-
benefit analysis that includes avoided environmental and economic
costs including infrastructure and operation and maintenance costs.
(g) (e)
"Great Lakes
basin" means the watershed of the Great
Lakes and the St. Lawrence river.
(h) (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.
(i) "Great Lakes basin ecosystem" means the interacting
components of air, land, water, and living organisms, including
humankind, within the Great Lakes basin.
(j) (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.
(k) "Improvement or restoration to the waters and water-
dependent natural resources of the Great Lakes basin" means
additional beneficial, restorative effects to the physical,
chemical, and biological integrity of the waters and water-
dependent natural resources of the basin, resulting from associated
conservation measures, or enhancement or restoration measures,
which include, but are not limited to, such practices as mitigating
adverse effects of existing water withdrawals, restoring
environmentally sensitive areas, or implementing conservation
measures in areas or facilities that are not part of the specific
proposal undertaken by or on behalf of the withdrawer.
(l) (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.
(m) (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.
(n) "Permit" means a water use permit issued under this part.
(o) (j)
"Public water supply
system" means a water system
that
provides water for human consumption or other household
purposes to persons other than the supplier of water and is subject
to the requirements of the safe drinking water act, 1976 PA 399,
MCL 325.1001 to 325.1023.
(p) (k)
"Registrant" means any
industrial or processing
facility or irrigation facility registered under this part.
(q) "Return flow" means the portion of withdrawn water that
returns naturally or is returned to the source watershed after use
and thus becomes available for further use.
(r) "Surface water augmentation facility" means a water well
or other removal method used to withdraw groundwater and convey or
transport it to a lake, an impoundment, or another surface water
body for the purpose of maintaining or raising the water level in
the surface water body.
(s) "Water-dependent natural resources" means the interacting
components of land, water, and living organisms affected by the
water of the Great Lakes basin.
(t) (l) "Water
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.
(u) (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. 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 permitting, 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) Effective management of the Great Lakes basin water
resources requires the joint exercise of such jurisdiction, rights,
and responsibilities in the interest of all of the people of the
Great Lakes region, acting in a continuing spirit of comity and
mutual cooperation.
(j) Michigan as a Great Lakes state reaffirms its right and
obligation to use, conserve, and protect Great Lakes basin water
resources, as expressed in the boundary waters treaty of 1909, the
Great Lakes water quality agreement of 1978, the Great Lakes
charter of 1985, and the Great Lakes charter annex of 2001.
(k) The state shall conserve the waters of the state by
implementing suitable policies and by encouraging private efforts
to conserve water.
Sec. 32702a. (1) The department shall implement this part in
coordination with other applicable law and department policy
pertaining to the protection of water quality.
(2) The interests and rights of Native American tribes of the
Great Lakes region shall be considered by the department in the
implementation of this part.
Sec. 32705. (1) Subject to subsection (2), a person who makes
a withdrawal shall register with the department on a form provided
by the department if, during the calendar year in which the
withdrawal occurs, any of the following apply:
(a) The person owns or operates an industrial or processing
facility that has the capacity to withdraw over 100,000 gallons of
water per day average in any consecutive 30-day period from the
waters of the Great Lakes basin.
(b) The person owns or operates an irrigation facility that
has the capacity to withdraw over 100,000 gallons of water per day
average in any consecutive 30-day period from the waters of the
Great Lakes basin.
(c) Beginning
1 year after the effective date of the
amendatory
act that added this subdivision, the The person owns or
operates a farm that has the capacity to withdraw over 100,000
gallons of water per day average in any consecutive 30-day period
from the waters of the Great Lakes basin.
(d) The person owns or operates a surface water augmentation
facility that has a capacity to withdraw over 100,000 gallons of
water per day average in any consecutive 30-day period from the
waters of the Great Lakes basin.
(2) The owner of a farm who registers under section 32708 is
not required to register under subsection (1).
(3) In calculating the total amount of an existing or proposed
withdrawal for the purpose of this section, a person shall combine
all separate withdrawals that the person makes or proposes to make,
whether or not these withdrawals are for a single purpose or are
for related but separate purposes.
Sec.
32706. Each registration under this part section 32705
shall consist of a statement and supporting documentation that
includes all of the following:
(a) The place and source of the proposed or existing
withdrawal.
(b) The location of any discharge or return flow.
(c) The location and nature of the proposed or existing water
user.
(d) The actual or estimated average annual and monthly volumes
and rate of withdrawal.
(e) The actual or estimated average annual and monthly volumes
and rates of consumptive use from the withdrawal.
Sec. 32707. (1) Except as provided in subsections (2) and (3),
a person who owns an industrial or processing facility, a surface
water augmentation facility, an irrigation facility, or a farm
registered under this part shall file a report annually with the
department on a form provided by the department. Reports shall be
submitted by April 1 of each year. Reports shall include the
following information:
(a) The amount and rate of water withdrawn on an annual and
monthly basis.
(b) The source or sources of the water supply.
(c) The use or uses of the water withdrawn.
(d) The amount of consumptive use of the water withdrawn.
(e)
If the source of the water withdrawn is groundwater, the
location
of the well or wells The
source of the water and the
location or locations of the withdrawal in latitude and longitude,
with the accuracy of the reported location data to within 15 feet.
(f) If the source of water withdrawn is groundwater, the
static water level of the aquifer or aquifers.
(g) Other information specified by rule of the department.
(2) If a person reports the information required by this
section to the department in conjunction with a permit or for any
other purpose, that reporting, upon approval of the department,
shall satisfy the reporting requirements of this section.
(3) The owner or operator of a farm who reports water use
under section 32708 is not required to report under subsection (1).
(4) The department may, upon request from a person required to
report under this section, accept a formula or model that provides
to the department's satisfaction the information required in
subsection (1).
(5) The department shall develop forms for reporting under
this section that minimize paperwork and allow for a notification
to the department instead of a report if the annual amount of water
withdrawn by a person required to report under this section is
within 4% of the amount last reported and the other information
required in subsection (1) has not changed since the last year in
which a report was filed.
(6) A person who files an annual report or notification under
this
section shall annually remit submit
to the department with
the
report a water use reporting fee of
$100.00. to the
department.
Water use reporting fees shall be remitted to the
department
in conjunction with the annual report or notification
submitted
under this section. The department shall transmit water
use reporting fees collected under this section to the state
treasurer to be credited to the water use protection fund created
in
section 32714. A water use reporting fee is not required for a
report
or notification related to a farm that reports water use
under
section 32708.
Sec.
32708. (1) Beginning 1 year after the effective date of
the
2003 amendatory act that amended this section Except as
provided in subsection (2), the owner or operator of a farm
described in section 32705(1)(c) who makes a withdrawal for an
agricultural purpose, including irrigation for an agricultural
purpose, may register the farm address and report the water use on
the farm by annually submitting to the department of agriculture a
water use conservation plan. The water use conservation plan shall
include, but need not be limited to, all of the following
information:
(a) The amount and rate of water withdrawn on an annual and
monthly basis in either gallons or acre inches.
(b) The type of crop irrigated, if applicable.
(c) The acreage of each irrigated crop, if applicable.
(d)
The source or sources of the water
supply and the
location or locations of the withdrawal in latitude and longitude,
with the accuracy of the reported location data to within 15 feet.
(e) If the water withdrawn is not used entirely for
irrigation, the use or uses of the water withdrawn.
(f) If the source of water withdrawn is groundwater, the
static water level of the aquifer or aquifers.
(g)
Applicable water Generally
accepted conservation
practices and an implementation plan for those practices.
(2) The department and the department of agriculture in
consultation with Michigan state university shall validate and use
a formula or model to estimate the consumptive use of withdrawals
made for agricultural purposes consistent with the objectives of
section 32707.
(3) The department of agriculture shall use water use
conservation plan information received under subsection (1) to
determine an estimate of water use and consumptive use data for
each township in the state. The department of agriculture shall
forward the township water use and consumptive use data to the
department for inclusion in the statewide groundwater inventory and
map prepared under section 32802.
Sec. 32709. The department may contract for the preparation
and distribution of informational materials to persons who withdraw
water
for irrigation or industrial purposes regarding the
purposes,
benefits, and requirements of this part , and may also
provide information on complying with the registration and
permitting program and on any general or applicable methods for
calculating or estimating water withdrawals or consumptive uses.
Sec. 32710. The department shall do all of the following:
(a) Cooperate with the states and provinces in the Great Lakes
region to develop and maintain a common base of information on the
use and management of the water of the Great Lakes basin and to
establish systematic arrangements for the exchange of this
information.
(b) Collect and maintain information regarding the locations,
types, and quantities of water use, including water withdrawals and
consumptive uses, in a form that the department determines is
comparable to the form used by other states and provinces in the
Great Lakes region.
(c) Collect, maintain, and exchange information on current and
projected future water needs with the other states and provinces in
the Great Lakes region.
(d) Cooperate with other states and provinces in the Great
Lakes region in developing a long-range plan for developing,
conserving, and managing the water of the Great Lakes basin.
(e) Participate in the development of a regional consultation
procedure for use in exchanging information on the effects of
proposed water withdrawals and consumptive uses from the Great
Lakes basin.
(f) Develop procedures for notifying water users and potential
water users of the requirements of this part.
(g) Cooperate with the other states and provinces in the Great
Lakes region to collectively conduct, within each lake watershed
and within the St. Lawrence river basin, a periodic assessment of
the cumulative impacts of withdrawals, diversions, and consumptive
uses from the waters of the Great Lakes basin.
Sec.
32711. A public water supply system that is required to
report
water withdrawals under the safe drinking water act, Act No.
399
of the Public Acts of 1976, being sections 325.1001 to 325.1023
of
the Michigan Compiled Laws, is exempt from the requirements of
this
part.
(1) A person shall not make a withdrawal from the waters of
the state without first having obtained a water use permit if
required by this part and fully complying with this part and all
orders, permit terms or conditions, or rules promulgated under this
part.
(2) Beginning 6 months after the effective date of the 2005
amendments to this section, a person proposing a new or increased
withdrawal from the waters of the state shall obtain a permit if
the amount of the new or increased withdrawal will average
2,000,000 gallons per day in any 30-day period or 100,000,000
gallons per year.
(3) Beginning January 1, 2010, a person proposing a new or
increased withdrawal from the waters of the state shall obtain a
permit if the amount of the new or increased withdrawal of water
will average 1,000,000 gallons per day in any 30-day period or
100,000,000 gallons per year.
(4) For the purpose of determining whether a permit is
required under this section, in calculating the total amount of a
new or increased withdrawal, a person shall combine all separate
withdrawals that the person proposes to make, whether or not these
withdrawals are for a single purpose or are for related but
separate purposes.
(5) For the purpose of determining whether a permit is
required under subsection (2), unless the amount of an existing
withdrawal is established in a permit issued under this part, the
amount of any increased withdrawal shall be determined by reference
to the highest annual prior usage that can be documented or
otherwise established within the 5 years preceding the effective
date of the amendatory act that added this subsection.
(6) For the purpose of determining whether a permit is
required under subsection (3), unless the amount of an existing
withdrawal is established in a permit issued under this part, the
amount of any increased withdrawal shall be determined by reference
to the highest annual prior usage that can be documented or
otherwise established within the 5 years preceding January 1, 2009.
(7) A permit is not required under this part for hydroelectric
facilities at sites certified, licensed, or permitted by the
federal energy regulatory commission.
Sec.
32712. This part does not authorize the department to
mandate
any permit or to regulate the withdrawal of water covered
under
this part.
(1) An application for a permit under section 32711 shall
contain a statement of and documentation for all of the following:
(a) The current operating capacity of the withdrawal, if the
proposed increase requires the expansion of an existing system.
(b) The total new or increased operating capacity of the
withdrawal.
(c) The place and source of the proposed withdrawal.
(d) The location of any discharge or return flow.
(e) The location and purpose of the proposed water use.
(f) The estimated withdrawal and return flow, including daily,
monthly, seasonal, and annual mean and peak volumes of withdrawals
and return flows.
(g) A list of all federal, state, and local approvals,
permits, licenses, and other authorizations required for any
proposed construction.
(h) A description of alternate sources or other ways the
applicant's need for water may be satisfied if the application is
denied or modified.
(i) A description of the generally accepted conservation
practices the applicant will implement.
(j) A description of any proposed improvement or restoration
to the waters and water-dependent natural resources of the Great
Lakes basin.
(k) Evidence that all adjacent property owners have received
written notification of the proposed withdrawal.
(l) Any other information necessary to establish that the
criteria of section 32712c are satisfied.
(2) The department shall charge and collect from each
applicant for a permit an application fee as established by the
department by rule. The department shall also establish by rule and
collect an annual permit fee for each permittee. The fees
established under this section shall be sufficient to enable the
department to recover the reasonable costs of administering this
part. The department shall transmit all money collected under this
subsection to the state treasurer to be credited to the water use
protection fund created in section 32714.
Sec. 32712a. Within 30 days after receiving a complete
application for a permit, the department shall post notice of the
application on the department's website. The notice shall identify
the location and amount of the proposed withdrawal and shall
contain instructions explaining how interested persons can obtain
additional information or provide comments to the department.
Sec. 32712b. (1) Unless a shorter time period is established
by the department by rule, not later than 6 months after the
receipt of a complete application, the department shall notify the
applicant that the application is granted, granted with
modification, or denied based upon the criteria established in
section 32712c and, if it is denied, the reason for the denial.
(2) The department shall process applications in the order in
which they are received, except as follows:
(a) If to do so would prevent prompt approval of routine
applications.
(b) If the public health, safety, or welfare of the people of
the state would be threatened by delay.
(c) If the department undertakes joint consideration of
pending applications proposing to withdraw water from the same
source of supply.
(d) If the proposed withdrawal is a high-priority economic
development project for the Michigan economic development
corporation.
(3) Prior to granting or denying a permit under this section,
the department may hold a public hearing for the purpose of
obtaining comments from members of the public.
(4) A permit issued under this section shall expire 5 years
from the date it is approved by the department.
Sec. 32712c. The department shall not issue a permit unless
the department determines that the applicant has demonstrated all
of the following:
(a) That a reasonable alternative water supply does not exist
within the watershed in which the water is proposed for use.
(b) That the withdrawal will not pollute, impair, or destroy
the natural resources of the state or the public trust therein and
that public water rights in navigable waters will not be adversely
affected.
(c) That both the applicant's current water use, if any, and
the applicant's proposed plans for withdrawal of water resources
incorporate reasonable environmentally sound and economically
feasible water conservation measures.
(d) That the proposed withdrawal will not have an adverse
impact on the quantity and quality of the waters and water-
dependent natural resources of the Great Lakes basin.
(e) That the proposed withdrawal is consistent with the
protection of the public health, safety, and welfare and the
environment and will not be detrimental to the public interest.
(f) That any potential impacts are minimized through the use
of return flow.
(g) That the proposed withdrawal incorporates plans for an
improvement to the waters and water-dependent natural resources of
the Great Lakes basin.
Sec. 32712d. (1) The department may at any time propose
modifications to a permit or additional conditions, limitations, or
restrictions determined to be necessary to ensure continued
compliance with this part or with any other applicable statute or
rule.
(2) If the department determines that a person to whom a
permit has been issued will be unable under any conditions,
limitations, or restrictions to comply with this part or another
applicable statute or rule, the department may revoke, limit, or
otherwise condition the permit.
(3) If the department determines that a person to whom a
permit has been issued obtained that permit through the submission
of false information, the department shall revoke the permit.
(4) The person holding a permit is entitled to a contested
case hearing under the administrative procedures act of 1969, 1969
PA 306, MCL 24.201 to 24.328, before a revocation or modification
takes effect. Any other person who may be adversely affected by a
proposed modification may petition the department for a contested
case hearing before a modification takes effect.
Sec. 32712e. The department may, without a prior hearing,
order a person holding a permit to immediately stop a withdrawal if
the department determines that there is a danger of imminent harm
to the public health, safety, or welfare, to the environment, or to
water dependent natural resources. The order shall specify the date
on which the withdrawal must be stopped and the date, if any, on
which it may be resumed. The order shall notify the person that the
person may request a contested case hearing under the
administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to
24.328. The hearing shall be held within 10 business days following
the request, unless the permittee requests a later date. An order
issued under this section remains in effect pending the result of
the hearing.
Sec. 32712f. A permit may be transferred to a successive owner
or operator of the property at which the withdrawal is located.
However, the new owner or operator shall notify the department
immediately after the conveyance and request transfer of the
permit. If a permit is transferred, all permit conditions continue
to be binding on the successive permittee.
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 or permit issued 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 $10,000.00
per day. 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. 32713a. (1) If the department has reason to believe that
any person has violated this part or any order or permit issued or
rule promulgated under this part, the department may order the
person to cease the violation or restore the waters of the state
and related land resources to their condition prior to the
violation, or both, as is reasonably necessary to the enforcement
of this part.
(2) Except as provided in subsection (3), prior to issuing an
order to a person under subsection (1), the department shall issue
and serve on that person a written notice of violation indicating
the provisions, orders, permit terms or conditions, or rules
allegedly violated and the facts alleged to constitute the
violation. The department shall give the person an opportunity to
answer the allegations and to appear at an administrative hearing
to be held not less than 30 days after the person was served with
the notice of violation.
(3) If the department determines that an emergency exists
requiring immediate correction of the violation, the department
shall, without a hearing, issue an order with immediate effect with
a hearing to follow within 10 business days of the issuance of this
order.
Sec. 32715. This part does not apply to brine wells regulated
under part 625.
Sec. 32716. (1) This part does not limit the right to any
remedy available to any person in an action under the statutory or
common law of this state.
(2) This part does not preempt the authority of any local unit
of government, including a local health department, to regulate
water withdrawals within its jurisdiction.
(3) This part does not relieve any person of the obligation to
obtain any other permits or approvals required by law.
(4) This part shall not be construed to create, convey, or
transfer any property interests in water. A permit issued under
this part does not confer any property interests on the permit
holder.
Sec. 32717. The department may promulgate rules as necessary
to implement or administer this part.