March 2, 2005, Introduced by Senator GILBERT 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 9105 and 9106 (MCL 324.9105 and 324.9106), as
amended by 2000 PA 504, and by adding sections 9106a and 9115a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 9105. (1) Subject to section 9106a and 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) 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) 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 section 9106a and 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) 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. 9106a. (1) A county enforcing agency or municipal
enforcing agency shall issue a general permit for a residential
project within its jurisdiction to a residential property owner who
wishes to engage in routine maintenance activities on a previously
permitted seawall or similar structure.
(2) A general permit shall be issued under subsection (1) upon
the submission of a form developed by the county enforcing agency
or municipal enforcing agency with jurisdiction over the proposed
project. The form shall contain the following information:
(a) Likely dates of the proposed work.
(b) Location of existing structures.
(c) A general description of the type of work to be completed.
(3) A county enforcing agency or municipal enforcing agency
may charge a fee, not to exceed the administrative costs to the
agency, for a general permit under this section.
Sec. 9115a. A residential property owner who causes the
following activities to be conducted on his or her individual
residential property is not required to obtain a permit under this
part:
(a) Gardening.
(b) Landscaping.
(c) Household maintenance.
(d) Fencing.
(e) Preventative measures used to stabilize soils.