HB-5065, As Passed House, May 21, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 5065

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 32701, 32702, 32703, and 32727 (MCL 324.32701,

324.32702, 324.32703, and 324.32727), sections 32701, 32702, and

32703 as amended and section 32727 as added by 2006 PA 33.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 32701. (1) As used in this part:

     (a) "Adverse resource impact" means either any of the

following:

     (i) Decreasing Subject to subparagraph (v), decreasing the flow

of a stream by part of the index flow such that the stream's

ability to support characteristic fish populations is functionally

impaired. cold river system by part of the index flow as follows:

     (A) For a cold stream, the withdrawal will result in a 1% or

more reduction in the density of thriving fish populations as

determined by the thriving fish curve.

     (B) For a cold small river, the withdrawal will result in a 1%

or more reduction in the density of thriving fish populations as

determined by the thriving fish curve.

     (ii) Subject to subparagraph (v), decreasing the flow of a

cold-transitional river system by part of the index flow as

follows:

     (A) For a cold-transitional stream, the withdrawal will result

in a 5% or more reduction in the density of thriving fish

populations as determined by the thriving fish curve.

     (B) For a cold-transitional small river, the withdrawal will

result in a 5% or more reduction in the density of thriving fish

populations as determined by the thriving fish curve.

     (C) For a cold-transitional large river, the withdrawal will

result in a 5% or more reduction in the density of thriving fish

populations as determined by the thriving fish curve.

     (iii) Subject to subparagraph (v), decreasing the flow of a cool

river system by part of the index flow as follows:

     (A) For a cool stream, the withdrawal will result in a 10% or

more reduction in the abundance of characteristic fish populations

as determined by the characteristic fish curve.

     (B) For a cool small river, the withdrawal will result in a

15% or more reduction in the density of thriving fish populations

as determined by the thriving fish curve.

     (C) For a cool large river, the withdrawal will result in a

12% or more reduction in the density of thriving fish populations

as determined by the thriving fish curve.

     (iv) Subject to subparagraph (v), decreasing the flow of a warm

river system by part of the index flow as follows:

     (A) For a warm stream, the withdrawal will result in a 5% or

more reduction in the abundance of characteristic fish populations

as determined by the characteristic fish curve.

     (B) For a warm small river, the withdrawal will result in a

10% or more reduction in the abundance of characteristic fish

populations as determined by the characteristic fish curve.

     (C) For a warm large river, the withdrawal will result in a

10% or more reduction in the abundance of characteristic fish

populations as determined by the characteristic fish curve.

     (v) Decreasing the flow of a stream, small river, or large

river by more than 25% of its index flow.

(vi) (ii) Decreasing the level of a body of surface water

natural lake or pond with a surface area of 5 acres or more through

a direct withdrawal from the lake or pond in a manner that would

not meet the requirements of section 30106, or such that the body

of surface water's ability of the lake or pond to support

characteristic fish populations is functionally impaired.

     (b) "Agricultural purpose" means the agricultural production

of plants and animals useful to human beings 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, 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.

     (c) "Assessment tool" means the water withdrawal assessment

tool provided for in section 32706a.

(d) (c) "Baseline capacity", subject to subsection (2), means

either any of the following, which shall be considered the existing

withdrawal approval amount under section 4.12.2 of the compact:

     (i) The following applicable withdrawal capacity as reported to

the department or the department of agriculture, as appropriate, by

the person making the withdrawal in the April 1, 2007 annual report

submitted under section 32707 not later than April 1, 2009 or in

the April 1, 2007 water use conservation plan submitted under

section 32708 not later than April 1, 2009:

     (A) For a community supply, the total designed withdrawal

capacity for the community supply under the safe drinking water

act, 1976 PA 399, MCL 325.1001 to 325.1023, on the effective date

of the amendatory act that added this subparagraph.

(A) (B) Unless reported under a different provision of this

subparagraph, for a quarry or mine that holds an authorization to

discharge under part 31 that includes a discharge volume, the

discharge volume stated in that authorization on the effective date

of the amendatory act that added this subparagraph February 28,

2006.

(B) (C) The system capacity used or developed to make a

withdrawal on the effective date of the amendatory act that added

this subparagraph February 28, 2006, if the system capacity and a

description of the system capacity are included in an annual report

that is submitted under this part not later than April 1, 2009.

     (ii) If the person making the withdrawal does not report under

subparagraph (i), the highest annual amount of water withdrawn as

reported under this part for calendar year 2002, 2003, 2004, or

2005. However, for a person who is required to report by virtue of

the 2008 amendments to section 32705(2)(d), baseline capacity means

the person's withdrawal capacity as reported in the April 1, 2009

annual report submitted under section 32707.

(iii) For a community supply, the total designed withdrawal

capacity for the community supply under the safe drinking water

act, 1976 PA 399, MCL 325.1001 to 325.1023, on February 28, 2006 as

reported to the department in a report submitted not later than

April 1, 2009.

     (e) "Characteristic fish curve" means a fish functional

response curve that describes the abundance of characteristic fish

populations in response to reductions in index flow as published in

the document entitled "Report to the Michigan Legislature in

response to 2006 Public Act 34" by the former groundwater

conservation advisory council dated July 2007, which is

incorporated by reference.

     (f) "Characteristic fish population" means the fish species,

including thriving fish, typically found at relatively high

densities in stream reaches having specific drainage area, index

flow, and summer temperature characteristics.

(g) "Cold river system" means a stream or small river that has

the appropriate summer water temperature that, based on statewide

averages, sustains a fish community composed predominantly of cold-

water fish species, and where small increases in water temperature

will not cause a decline in these populations, as determined by a

scientific methodology adopted by order of the commission.

     (h) "Cold-transitional river system" means a stream, small

river, or large river that has the appropriate summer water

temperature that, based on statewide averages, sustains a fish

community composed predominantly of cold-water fish species, and

where small increases in water temperature will cause a decline in

the proportion of cold-water species, as determined by a scientific

methodology adopted by order of the commission.

(i) (d) "Community supply" means that term as it is defined in

section 2 of the safe drinking water act, 1976 PA 399, MCL

325.1002.

     (j) "Compact" means the Great Lakes-St. Lawrence river basin

water resources compact provided for in part 342.

(k) (e) "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 agricultural products,

use as part of the packaging of products or agricultural products,

or other processes. Consumptive use includes a withdrawal of waters

of the Great Lakes basin that is packaged within the Great Lakes

basin in a container of 5.7 gallons (20 liters) or less and is

bottled drinking water as defined in the food code, 2005

recommendations of the food and drug administration of the United

States public health service.

     (l) "Cool river system" means a stream, small river, or large

river that has the appropriate summer water temperature that, based

on statewide averages, sustains a fish community composed mostly of

warm-water fish species, but also contains some cool-water species

or cold-water species, or both, as determined by a scientific

methodology adopted by order of the commission.

     (m) "Council" means the Great Lakes-St. Lawrence river basin

water resources council created in the compact.

(n) (f) "Department" means the department of environmental

quality.

(o) (g) "Designated trout stream" means a trout stream

identified on the document entitled "Designated Trout Streams for

the State of Michigan", as issued under order of the director of

the department of natural resources, FO-210.04, on October 10,

2003.

(p) (h) "Diverted" means a transfer of water by pipeline,

canal, tunnel, aqueduct, channel, modification of the direction of

a watercourse, tanker ship, tanker truck, rail tanker, or similar

means from the Great Lakes basin into a watershed outside of the

Great Lakes basin. Diverted "Diversion" means a transfer of water

from the Great Lakes basin into another watershed, or from the

watershed of 1 of the Great Lakes into that of another by any means

of transfer, including, but not limited to, a pipeline, canal,

tunnel, aqueduct, channel, modification of the direction of a water

course, tanker ship, tanker truck, or rail tanker but does not

apply to water that is used in the Great Lakes basin or a Great

Lake watershed to manufacture or produce a product that is then

transferred out of the Great Lakes basin or watershed. Diverted has

a corresponding meaning. Diversion includes a transfer of water

withdrawn from the waters of the Great Lakes basin that is removed

from the Great Lakes basin in a container greater than 5.7 gallons

(20 liters). Diverted Diversion does not include any of the

following:

     (i) A consumptive use.

     (ii) The supply of vehicles, including vessels and aircraft,

whether for the needs of the persons or animals being transported

or for ballast or other needs related to the operation of vehicles.

     (iii) Use in a noncommercial project on a short-term basis for

firefighting, humanitarian, or emergency response purposes.

     (iv) A transfer of water from a Great Lake watershed to the

watershed of its connecting waterways.

(q) (i) "Environmentally sound and economically feasible water

conservation measures" means those measures, methods, technologies,

or practices for efficient water use and for reduction of water

loss and waste or for reducing a withdrawal, consumptive use, or

diversion that meet all of the following:

     (i) Are environmentally sound.

     (ii) Reflect best practices applicable to the water use sector.

     (iii) Are technically feasible and available.

     (iv) Are economically feasible and cost-effective based on an

analysis that considers direct and avoided economic and

environmental costs.

     (v) Consider the particular facilities and processes involved,

taking into account the environmental impact, the age of equipment

and facilities involved, the process employed, energy impacts, and

other appropriate factors.

(r) (j) "Farm" means that term as it is defined in section 2

of the Michigan right to farm act, 1981 PA 93, MCL 286.472.

     (k) "Generally accepted water management practices" means

standards or guidelines for water use that ensure water is used

efficiently.

     (s) "Flow-based safety factor" means a protective measure of

the assessment tool that reduces the portion of index flow

available for a withdrawal to 1/2 of the index flow for the purpose

of minimizing the risk of adverse resource impacts caused by

statistical uncertainty.

     (t) "Great Lakes" means Lakes Superior, Michigan and Huron,

Erie, and Ontario and their connecting waterways including the St.

Marys river, Lake St. Clair, the St. Clair river, and the Detroit

river. For purposes of this definition, Lakes Huron and Michigan

shall be considered a single Great Lake.

(u) (l) "Great Lakes basin" means the watershed of the Great

Lakes and the St. Lawrence river.

(v) (m) "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.

(w) (n) "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.

(x) (o) "Index flow" means the 50% exceedance flow for the

lowest summer flow month of the flow regime, for the applicable

stream reach, as determined over the period of record or

extrapolated from analyses of the United States geological survey

stream flow gauges in Michigan, on December 31, 2007.

     (y) "Intrabasin transfer" means a diversion of water from the

source watershed of a Great Lake prior to its use to the watershed

of another Great Lake.

     (z) "Lake augmentation well" means a water well used to

withdraw groundwater for the purpose of maintaining or raising

water levels of an inland lake or stream as defined in section

30101.

(aa) (p) "Large quantity withdrawal" means 1 or more

cumulative total withdrawals of over 100,000 gallons of water per

day average in any consecutive 30-day period that supply a common

distribution system.

     (bb) "Large river" means a flowing body of water with a

drainage area of 300 or more square miles.

(cc) (q) "New or increased large quantity withdrawal" means a

new water withdrawal of over 100,000 gallons of water per day

average in any consecutive 30-day period or an increase of over

100,000 gallons of water per day average in any consecutive 30-day

period beyond the baseline capacity of a withdrawal.

(dd) (r) "New or increased withdrawal capacity" means new or

additional water withdrawal capacity to supply a common

distribution system that is an increase from the person's baseline

capacity. New or increased capacity does not include maintenance or

replacement of existing withdrawal capacity.

     (s) "Political subdivision" means that term as it is defined

in section 2 of the safe drinking water act, 1976 PA 399, MCL

325.1002.

     (ee) "Online registration process" means the online

registration process provided for in section 32706.

(ff) (t) "Registrant" means a person who registers has

registered a water withdrawal capacity under this part under

section 32705.

     (gg) "Restorative measure" means an action affecting a stream,

small river, or large river that will provide additional stream or

river flow beyond the index flow or will improve the temperature

regime of the stream or river.

     (hh) "Site-specific review" means the department's independent

review under section 32706c to determine whether the withdrawal is

a zone A, zone B, zone C, or zone D withdrawal and whether a

withdrawal is likely to cause an adverse resource impact.

     (ii) "Small river" means a flowing body of water with a

drainage area of 80 or more square miles but less than 300 square

miles.

     (jj) "Source watershed" means the watershed from which a

withdrawal originates. If water is withdrawn directly from a Great

Lake, then the source watershed shall be considered to be the

watershed of that Great Lake and its connecting waterways. If water

is withdrawn from the watershed of a direct tributary to a Great

Lake, then the source watershed shall be considered to be the

watershed of that Great Lake and its connecting waterways, with a

preference for returning water to the watershed of the direct

tributary from which it was withdrawn.

     (kk) "Stream" means a flowing body of water with a drainage

area of less than 80 square miles.

     (ll) "Stream reach" means a segment of a stream, small river,

or large river.

     (mm) "Thriving fish curve" means a fish functional response

curve that describes the initial decline in density of thriving

fish populations in response to reductions in index flow as

published in the document entitled "Report to the Michigan

Legislature in response to 2006 Public Act 34" by the former

groundwater conservation advisory council dated July 2007, which is

incorporated by reference.

     (nn) "Thriving fish population" means the fish species that

are expected to flourish at very high densities in stream reaches

having specific drainage area, index flow, and summer temperature

characteristics.

     (oo) "Warm river system" means a stream, small river, or large

river that has the appropriate summer water temperature that, based

on statewide averages, sustains a fish community composed

predominantly of warm-water fish species, as determined by a

scientific methodology adopted by order of the commission.

(pp) (u) "Waters 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.

(qq) (v) "Waters of the state" means groundwater, lakes,

rivers, and streams and all other watercourses and waters,

including the Great Lakes, within the territorial boundaries of the

state. Waters of the state do not include drainage ways and ponds

designed and constructed solely for wastewater conveyance,

treatment, or control.

(rr) (w) "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 of water from surface water or groundwater.

     (ss) "Zone A withdrawal" means the following:

     (i) For a cold stream or small river, less than 50% of the

withdrawal that would result in an adverse resource impact.

     (ii) For a cold-transitional river system, there is not a zone

A withdrawal.

     (iii) For a cool river system, as follows:

     (A) For a cool stream, less than a 10% reduction in the

density of thriving fish populations as determined by the thriving

fish curve.

     (B) For a cool small river, less than a 5% reduction in the

density of thriving fish populations as determined by the thriving

fish curve.

     (C) For a cool large river, less than an 8% reduction in the

density of thriving fish populations as determined by the thriving

fish curve.

     (iv) For a warm river system, less than a 10% reduction in the

density of thriving fish populations as determined by the thriving

fish curve.

     (tt) "Zone B withdrawal" means the following:

     (i) There is not a zone B withdrawal for a cold stream or small

river.

     (ii) For a cold-transitional river system, less than a 5%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (iii) For a cool river system, as follows:

     (A) For a cool stream, a 10% or more but less than a 20%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (B) For a cool small river, a 5% or more but less than a 10%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (C) For a cool large river, an 8% or more but less than a 10%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (iv) For a warm river system, as follows:

     (A) For a warm stream, a 10% or more but less than a 15%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (B) For a warm small river or a warm large river, a 10% or

more but less than a 20% reduction in the density of thriving fish

populations as determined by the thriving fish curve.

     (uu) "Zone C withdrawal" means the following:

     (i) For a cold stream or small river, 50% or more of the

withdrawal that would result in an adverse resource impact but less

than a 1% reduction in the density of thriving fish populations as

determined by the thriving fish curve.

     (ii) There is not a zone C withdrawal for a cold-transitional

river system.

     (iii) For a cool river system, as follows:

     (A) For a cool stream, a 20% or more reduction in the density

of thriving fish populations as determined by the thriving fish

curve but less than a 10% reduction in the abundance of

characteristic fish populations as determined by the characteristic

fish curve.

     (B) For cool small rivers, a 10% or more but less than a 15%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (C) For cool large rivers, a 10% or more but less than a 12%

reduction in the density of thriving fish populations as determined

by the thriving fish curve.

     (iv) For warm river systems, as follows:

     (A) For warm streams, a 15% or more reduction in the density

of thriving fish populations as determined by the thriving fish

curve but less than a 5% reduction in the abundance of

characteristic fish populations as determined by the characteristic

fish curve.

     (B) For warm small rivers and warm large rivers, a 20% or more

reduction in the density of thriving fish populations as determined

by the thriving fish curve but less than a 10% reduction in the

abundance of characteristic fish populations as determined by the

characteristic fish curve.

     (vv) "Zone D withdrawal" means a withdrawal that is likely to

cause an adverse resource impact.

     (2) For purposes of determining baseline capacity, a person

who replaces his or her surface water withdrawal capacity with the

same amount of groundwater withdrawal capacity from the drainage

area of the same stream reach may retain the baseline capacity

established under this section.

     Sec. 32702. (1) 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 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) The waters of the Great Lakes basin are capable of

concurrently serving multiple uses, and such multiple uses of water

resources for municipal, public, industrial, commercial,

agriculture, mining, navigation, energy development and production,

recreation, water quality maintenance, and the maintenance of fish

and wildlife habitat and a balanced ecosystem and other purposes

are encouraged, recognizing that such uses are interdependent and

must be balanced.

     (j) The waters of the Great Lakes basin are interconnected and

part of a single hydrologic system.

     (2) The legislature has the authority under sections 51 and 52

of article IV of the state constitution of 1963 to regulate the

withdrawal and uses of the waters of the state, including both

surface water and groundwater, to promote the public health,

safety, and welfare and to protect the natural resources of the

state from pollution, impairment, and destruction, subject to

constitutional protections against unreasonable or arbitrary

governmental action and the taking of property without just

compensation. This authority extends to all waters within the

territorial boundaries of the state.

Sec. 32703. Subject to section 32704, a diversion of the

waters of the Great Lakes basin within the boundaries of this state

shall not be diverted state out of the Great Lakes basin is

prohibited.

     Sec. 32727. (1) A withdrawal pursuant to part 111, 115, 201,

or 213 is The following withdrawals are exempt from the

requirements of this part . as long as they do not result in a

diversion:

     (a) A withdrawal undertaken as part of an activity authorized

by the department under part 111, 115, 201, 213, or 615.

     (b) A withdrawal undertaken as part of an activity authorized

by the United States environmental protection agency under either

House Bill No. 5065 (H-5) as amended May 21, 2008

of the following:

     (i) The comprehensive environmental response, compensation, and

liability act of 1980, Public Law 96-510.

     (ii) The resource conservation and recovery act of 1976, Public

Law 94-580.

     (c) A withdrawal that is undertaken for hydroelectric

generation at sites certified, licensed, or permitted by the

federal energy regulatory commission.

     (d) A hydroelectric facility authorized under section 12 of

chapter 264 of the act of March 3, 1909, commonly known as the

river and harbor act of 1909, 35 Stat. 821.

     (e) A hydroelectric facility authorized under section 1075(c)

of the intermodal surface transportation efficiency act of 1991,

Public Law 102-240.

     (f) A hydroelectric facility authorized under Public Law 85,

chapter 1368, 34 Stat. 102.

     (g) Removal of water from an artificially created surface

water body that has as its primary source of water either of the

following:

     (i) A withdrawal that is not a new or increased large quantity

withdrawal.

     (ii) A registered new or increased large quantity withdrawal

that has been determined by the assessment tool, a site-specific

review, or a permit issued under section 32723 as a withdrawal that

is not likely to cause an adverse resource impact.

[(h) A withdrawal from a noncommercial well located on single-family residential property not exceeding 4 units and not more than 3 acres in size. However, the exemption provided for in this subdivision does not apply to lake augmentation wells.]

     (2) The director of the department shall ensure that data in

the possession of the state related to withdrawals that are not

House Bill No. 5065 (H-5) as amended May 21, 2008

regulated under this part are compiled and shared with departmental

personnel responsible for implementing this part.

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