DRAFT 1A

HB-5069, As Passed House, June 4, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 5069

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 32705 and 32706 (MCL 324.32705 and 324.32706),

section 32705 as amended by 2006 PA 35 and section 32706 as amended

by 1996 PA 434, and by adding sections 32706a, 32706b, 32706c,

32706d, and 32706e.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 32705. (1) Except as otherwise provided in this section,

the owner of real property who ~~has the~~ intends to develop capacity

on that property to make a new or increased large quantity

withdrawal from the waters of this state shall register the

withdrawal with the department after using the assessment tool, if

required under this part, and prior to beginning that withdrawal. A

House Bill No. 5069 (H-11) as amended June 4, 2008

registration under this section may be made using the online

registration process.

(2) The following persons are not required to register under

this section:

(a) A Subject to subdivision (c), a person who has previously

registered for that property under this part, unless that

registrant develops new or increased withdrawal capacity on the

property of an additional 100,000 gallons of water per day from the

waters of the state.

(b) A community supply ~~owned by a political subdivision that~~

~~holds~~ required to obtain a permit under the safe drinking water

act, 1976 PA 399, MCL 325.1001 to 325.1023.

32723.

(d) The owner of a noncommercial well located on single-family

residential property [not exceeding 14 units and not more than 3 acres in

size] unless that well is a lake augmentation well.

(e) A person required to obtain a determination from the

department under section 17 of the safe drinking water act, 1976 PA

399, MCL 325.1017.

~~(3) The following persons shall register under this section~~

~~but may register after beginning the withdrawal but before 90 days~~

~~after the effective date of the amendatory act that added this~~

~~section:~~

~~(a) A person who was developing new or increased withdrawal~~

~~capacity on the effective date of the amendatory act that added~~

~~this section.~~

~~(b) A person who was not required to register under this part~~

~~prior to the effective date of the amendatory act that added this~~

~~section.~~

(3) ~~(4)~~ Subsection (1) does not limit a property owner's

ability to withdraw water from a test well prior to registration if

the test well is constructed in association with the development of

new or increased withdrawal capacity and used only to evaluate the

development of new or increased withdrawal capacity.

(4) ~~(5)~~ A registration under this section by the owner of a

farm in which the withdrawal is intended for an agricultural

purpose, including irrigation for an agricultural purpose, ~~shall~~

may be submitted to the department of agriculture instead of the

department.

(5) ~~(6)~~ A registration submitted under this section that is

not submitted via the online registration process shall be on a

form provided by the department or the department of agriculture,

as appropriate.

(6) ~~(7)~~ 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.

(7) ~~(8)~~ The department shall aggregate information received by

the state related to large quantity withdrawal capacities within

the state and reported large quantity withdrawals in the state.

(8) Unless a property owner develops the capacity to make the

new or increased large quantity withdrawal within 18 months after

the property owner registers under subsection (1), the registration

is no longer valid.

Sec. 32706. (1) Not later than 1 year after the effective date

of the amendatory act that amended this section, the department

shall develop and implement an internet-based online registration

process that may be used for registrations under section 32705. The

online registration process shall be designed to work in

conjunction with the assessment tool.

(2) Each registration under this part shall ~~consist of a~~

include both of the following:

(a) A statement and supporting documentation that includes all

of the following:

(i) ~~(a)~~ The place and source of the proposed ~~or existing~~

withdrawal.

(ii) ~~(b)~~ The location of any discharge or return flow

associated with the proposed withdrawal.

(iii) ~~(c)~~ The location and nature of the proposed ~~or existing~~

water user.

(iv) The capacity of the equipment used for making the proposed

withdrawal.

(v) ~~(d)~~ The ~~actual or~~ estimated average annual and monthly

volumes and rate of proposed withdrawal.

(vi) ~~(e)~~ The ~~actual or~~ estimated average annual and monthly

volumes and rates of consumptive use from the proposed withdrawal.

(b) For a new or increased large quantity withdrawal from a

stream, small river, or large river, or groundwater, the

determination from the use of the assessment tool under section

32706b or the determination from a site-specific review, as

appropriate.

Sec. 32706a. (1) Not later than 4 months after the effective

date of the amendatory act that added this section, the department

shall develop and make available for testing and evaluation an

internet-based water withdrawal assessment tool based upon the

recommendations of the former groundwater conservation advisory

council and the requirements of this part. The assessment tool

shall contain a flow-based safety factor. Beginning 1 year after

the effective date of the amendatory act that added this section,

the department shall implement the assessment tool.

(2) The assessment tool shall determine whether a proposed

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

whether a proposed withdrawal is likely to cause an adverse

resource impact based upon whether the proposed withdrawal is from

a cold river system, a cold-transitional river system, a cool river

system, or a warm river system. The assessment tool shall also

distinguish the impact of a proposed withdrawal based upon whether

the proposed withdrawal is from a stream, a small river, or a large

river, subject to the following:

(a) Cool streams and warm streams with less than 3 square

miles of drainage area shall be integrated into the next largest

drainage area for purposes of assessment tool determinations for

groundwater and surface water withdrawals.

(b) Cool streams and warm streams with less than 20 square

miles of drainage area and less than 1 cubic foot per second of

index flow shall be integrated into the next largest drainage area

for purposes of assessment tool determinations for groundwater and

surface water withdrawals.

than 3 square miles but less than 6 square miles shall be

integrated into the next largest drainage area for purposes of

assessment tool determinations for groundwater withdrawals.

(3) The assessment tool shall allow the user to enter into

fields the following data related to a proposed withdrawal:

(a) The capacity of the equipment used for making the

withdrawal.

(b) The location of the withdrawal.

groundwater.

(d) If the source of the withdrawal is groundwater, whether

the source of the withdrawal is a glacial stratum or bedrock.

(e) The depth of the withdrawal if from groundwater.

(f) The amount and rate of water to be withdrawn.

(g) Whether the withdrawal will be intermittent.

(4) The assessment tool shall contain a print function that

allows the user, upon receipt of the assessment tool's

determination, to print the data submitted and the determination

returned along with a date and time.

(5) The assessment tool shall work in conjunction with the

online registration process and shall also allow operation

independent of the online registration process.

(6) On an ongoing basis, the department shall add verified

data to the assessment tool's database from reports submitted under

sections 32707, water use conservation plans submitted under

section 32708, reports submitted under the safe drinking water act,

1976 PA 399, MCL 325.1001 to 325.1023, and other sources of data

regarding the waters of the state. Additionally, the department

shall make technical modifications to the assessment tool related

to considerations of temperature, hydrology, and stream or river

flow based upon a scientific methodology adopted by order of the

commission.

(7) The department in consultation with the water resources

conservation advisory council created in section 32803 and the

approval of the commission shall develop a protocol for documenting

the difference between the baseline capacity and actual use by

large quantity water users that existed as of February 28, 2006.

Once the protocol has been established, the department shall take

into consideration the difference when making site-specific

determinations or permit decisions under this part. The department

shall adjust the assessment tool to take into consideration the

difference if it determines it is necessary to protect current

users of water or to avoid adverse resource impacts.

(8) The department shall report annually to the standing

committees of the legislature with jurisdiction primarily

pertaining to natural resources and the environment on the

implementation of the assessment tool.

Sec. 32706b. (1) Upon implementation of the assessment tool

under section 32706a, prior to registering a new or increased large

quantity withdrawal under section 32706 for a proposed withdrawal

from a stream, small river, or large river, or from groundwater,

the property owner proposing to make the withdrawal shall utilize

House Bill No. 5069 (H-11) as amended June 4, 2008

the assessment tool by entering the data related to the proposed

withdrawal into the assessment tool. [However, a person who intends to

make a new or increased large quantity withdrawal for the purpose of dewatering a mine that has a permit under part 31 and is not regulated under part 631, 632, or 637 may choose to submit a request for a site-specific review rather than utilize the assessment tool.]

(2) Upon entry of the relevant data under subsection (1), the

assessment tool shall indicate to the user whether or not the

proposed withdrawal is likely to cause an adverse resource impact

and whether the proposed withdrawal falls into the category of zone

A, zone B, zone C, or zone D.

(3) If the assessment tool designates a proposed withdrawal as

a zone A withdrawal, or a zone B withdrawal in a cool river system

or a warm river system, the property owner may register the

withdrawal and proceed to make the withdrawal.

(4) If the assessment tool designates a proposed withdrawal as

a zone B withdrawal in a cold-transitional river system, or a zone

C or zone D withdrawal, the property owner shall not register the

withdrawal or make the withdrawal except in accordance with section

32706c.

(5) After a property owner registers a withdrawal, if, in

developing the capacity to make the withdrawal, the conditions of

the withdrawal deviate from the specific data that were entered

into the assessment tool, the property owner shall rerun the

assessment tool and shall enter the corrected data into the

assessment tool. The property owner shall notify the department of

the corrected data and the corrected results from the assessment

tool. If the corrected data do not change the determination of the

assessment tool, the property owner may proceed with the

withdrawal. If the corrected data change the determination from the

assessment tool, the property owner shall proceed under the

provisions of this part related to the corrected assessment tool

determination.

Sec. 32706c. (1) If the assessment tool determines that a

proposed withdrawal is a zone B withdrawal in a cold-transitional

river system, or a zone C or zone D withdrawal, the property owner

shall submit to the department a request for a site-specific

review. Additionally, if the assessment tool determines that a

proposed withdrawal is a zone A withdrawal, or a zone B withdrawal

in a cool river system or a warm river system and the property

owner wishes to have a site-specific review, the property owner may

submit to the department a request for a site-specific review. A

request for a site-specific review shall be submitted to the

department in a form required by the department and shall include

all of the following:

(a) The information described in section 32706a(3).

(b) The intended maximum monthly and annual volumes and rates

of the proposed withdrawal, if different from the capacity of the

equipment used for making the proposed withdrawal.

have seasonal fluctuations, the relevant information related to the

seasonal use of the proposed withdrawal.

(d) A description of how the water will be used and the

location, amount, and rate of any return flow.

(e) Any other information the property owner would like the

department to consider in making its determination under this

section.

(2) Upon receipt of a request for a site-specific review, the

department shall consider the information submitted to the

department under subsection (1) and shall consider the actual

stream or river flow data of any affected stream reach. The

department shall also apply the drainage area aggregation standards

provided in section 32706a(2)(a) and (b), if applicable. The

department shall not rely on the assessment tool's determination in

making its determination under a site-specific review.

(3) The department shall complete its site-specific review

within 10 working days of submittal of a request for a site-

specific review. If the department determines, based upon a site-

specific review, that the proposed withdrawal is a zone A or a zone

B withdrawal, the department shall provide written notification to

the property owner and the property owner may register the

withdrawal and may proceed with the withdrawal.

(4) Subject to subsection (5), if the department determines in

conducting a site-specific review that the proposed withdrawal is a

zone C withdrawal, the property owner may register the withdrawal

and proceed to make the withdrawal if the property owner self-

certifies that he or she is implementing applicable environmentally

sound and economically feasible water conservation measures

prepared under section 32708a or has self-certified that he or she

is implementing applicable environmentally sound and economically

feasible water conservation measures developed for the water use

associated with that specific withdrawal.

(5) If a site-specific review determines that the withdrawal

is a zone C withdrawal in which either of the following conditions

exists, the person proposing the withdrawal shall not register the

withdrawal and shall not proceed with making the withdrawal unless

the person obtains a water withdrawal permit under section 32723:

(a) The proposed withdrawal would reduce the flow of a cold

small river by 14% or more of its index flow.

(b) The proposed withdrawal would reduce the flow of a cool

river system or a warm river system by 20% or more of its index

flow.

(6) If the department determines, based upon a site-specific

review, that the proposed withdrawal is a zone D withdrawal, the

property owner shall not register the withdrawal and shall not make

the withdrawal unless he or she applies for a water withdrawal

permit under section 32723 and the withdrawal is authorized under

that section.

(7) After a property owner registers a withdrawal following a

site-specific review, if, in developing the capacity to make the

withdrawal, the conditions of the withdrawal deviate from the

specific data that were evaluated in the site-specific review, the

property owner shall notify the department of the corrected data

and the department shall confirm its determination under the site-

specific review. If the corrected data do not change the

determination under the site-specific review, the property owner

may proceed with the withdrawal. If the corrected data change the

determination under the site-specific review, the property owner

shall proceed under the provisions of this part related to the

corrected determination.

(8) Notwithstanding any other provision of this section, prior

to the implementation date of the assessment tool under section

32706a, a property owner proposing to develop capacity on his or

her property to make a new or increased large quantity withdrawal

may submit to the department a request for an interim site-specific

review under this subsection to determine whether or not the

proposed withdrawal is likely to cause an adverse resource impact.

However, a property owner proposing to develop capacity on his or

her property to make a new or increased large quantity withdrawal

of 1,000,000 gallons per day or more is required to obtain an

interim site-specific review under this subsection. The department,

upon request, shall conduct an interim site-specific review under

this subsection within a reasonable time period not to exceed 30

days based upon an evaluation of reasonably available information.

For purposes of this part, a determination under an interim site-

specific review under this subsection shall be afforded the same

status as a site-specific review otherwise conducted under this

section.

Sec. 32706d. (1) The department shall develop a protocol for

the collection of stream or river flow measurements by persons

other than the department for use by the department in the

administration of this part. The protocol shall ensure that stream

or river flow measurements collected for this purpose meet the same

data quality standards as stream or river flow measurements

collected by the United States geological survey. The department

shall consult with the United States geological survey and other

recognized scientific experts in developing this protocol,

including an appropriate length of record.

(2) The department may use stream or river flow data collected

using the protocol developed under subsection (1) in conducting

site-specific reviews, in making water withdrawal permit decisions

under section 32723, in issuing permits under the safe drinking

water act, 1976 PA 399, MCL 325.1001 to 325.1023, in updating the

water withdrawal assessment tool as appropriate, or in other

actions requiring an evaluation of stream or river flow.

(3) The department may establish a program to train and

certify individuals in the collection of stream or river flow

measurements. The department shall charge a fee sufficient to

reimburse the department for the cost of a program developed under

this subsection. The department may enter into a cooperative

agreement with the United States geological survey to provide

training and certification under this section.

Sec. 32706e. (1) Notwithstanding any other provision of this

part, the department shall not authorize, through use of the

assessment tool, a site-specific review, or a permit, a withdrawal

that uses additional stream or river flow made available by

restorative measures unless the restorative measures are conducted

in conjunction with a withdrawal and are specifically authorized in

a permit.

(2) If a person conducts restorative measures that are not

related to a large quantity withdrawal, the person shall provide

detailed information to the department documenting the restorative

measures and documenting the increased stream or river flow or

temperature improvements achieved through the restorative measures.

(3) As used in this section, "permit" means a permit under

section 32723 or the safe drinking water act, 1976 PA 399, MCL

325.1001 to 325.1023.

Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 94th Legislature are

enacted into law:

(a) House Bill No. 4343.

(b) House Bill No. 5065.

(d) House Bill No. 5067.

(e) House Bill No. 5068.

(f) House Bill No. 5070.

(g) House Bill No. 5071.

(h) House Bill No. 5072.

(i) House Bill No. 5073.