HB-5069, As Passed Senate, June 25, 2008

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5069

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 32702, 32703, 32705, 32706, and 32723 (MCL

324.32702, 324.32703, 324.32705, 324.32706, and 324.32723),

sections 32702 and 32703 as amended and section 32723 as added by 2006

PA 33, section 32705 as amended by 2006 PA 35, and section 32706 as

amended by 1996 PA 434.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     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. 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

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 or the owner of real

property containing the capacity to make a withdrawal that was

previously requested under this part, unless that registrant the

property owner 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.

     (c) A person holding required to obtain a permit under section

32723.

     (d) The owner of a noncommercial well located on the following

residential property: .

     (i) Single-family residential property unless that well is a

lake augmentation well.

     (ii) Multifamily residential property not exceeding 4

residential units and not more than 3 acres in size unless that

well is a lake augmentation well.

     (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 use.

     (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 the proposed withdrawal.

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

volumes and rates of consumptive use from the proposed withdrawal.

     (b) Beginning 1 year after the effective date of the

amendatory act that added this subdivision, for a new or increased

large quantity withdrawal from a stream or 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. 32723. (1) Except as provided in subsection (10) (13),

the following persons shall obtain a water withdrawal permit prior

to making the withdrawal:

     (a) A person who develops proposes to develop withdrawal

capacity to make a new withdrawal of over more than 2,000,000

gallons of water per day from the waters of the state , other than

the Great Lakes and their connecting waterways, to supply a common

distribution system.

     (b) A person who develops proposes to develop increased

withdrawal capacity beyond baseline capacity of more than 2,000,000

gallons of water per day from the waters of the state , other than

the Great Lakes and their connecting waterways, to supply a common

distribution system.

     (c) A person who develops withdrawal capacity to make a new

withdrawal of more than 5,000,000 gallons of water per day from the

Great Lakes and their connecting waterways to supply a common

distribution system.

     (d) A person who develops increased withdrawal capacity beyond

baseline capacity of more than 5,000,000 gallons of water per day

from the Great Lakes and their connecting waterways to supply a

common distribution system.

     (c) A person who proposes to develop withdrawal capacity to

make a new or increased large quantity withdrawal of more than

1,000,000 gallons of water per day from the waters of the state to

supply a common distribution system that a site-specific review has

determined is a zone C withdrawal.

     (d) A person who proposes to develop a new or increased

withdrawal capacity that will result in an intrabasin transfer of

more than 100,000 gallons per day average over any 90-day period.

     (2) A person shall apply for a water withdrawal permit under

this section by submitting an application to the department

containing the information described in section 32706 32706c(1)(a)

to (e) and an evaluation of existing hydrological and

hydrogeological conditions. If the applicant proposes to undertake

a preventative measure along with the withdrawal, the property

owner shall provide the department with a detailed description of

the preventative measure and relevant information as to how the

preventative measure will be implemented. In addition, until 5

years after the effective date of the amendatory act that added

this section, the applicant shall submit an application fee in the

amount of $2,000.00. The department shall transmit water use

reporting application fees collected under this section to the

state treasurer to be credited to the water use protection fund

created in section 32714. The department shall provide public

notice of all applications received under this section.

     (3) A permit An application submitted under subsection (2) is

considered to be administratively complete effective 30 days after

it is received by the department unless the department notifies the

applicant, in writing, during this 30-day period that the

application is not administratively complete or that the fee

required to be accompanied with the application has not been paid.

If the department determines that the application is not

administratively complete, the notification shall specify the

information necessary to make the application administratively

complete. If the department notifies the applicant as provided in

this subsection, the 30-day period is tolled until the applicant

submits to the department the specified information or fee.

     (4) The department shall provide public notification of its

receipt of applications under this section and shall provide a

public comment period of not less than 45 days before applications

are acted upon under subsection (5).

(5) (4) The department shall make a decision whether to grant

or deny a water withdrawal permit under this section within 120

days of receipt of an administratively complete application.

     (5) The department shall issue a permit under subsection

(1)(a) or (b) if the department determines that the withdrawal is

not likely to cause an adverse resource impact.

     (6) The department shall issue a water withdrawal permit under

subsection (1)(c) or (d) (1)(a), (b), or (c) if all of the

following conditions are met:

     (a) All water withdrawn, less any consumptive use, is

returned, either naturally or after use, to the source watershed.

     (b) The withdrawal will be implemented so as to ensure that

the proposal will result in no individual or cumulative adverse

resource impacts. Cumulative adverse resource impacts under this

subdivision shall be evaluated by the department based upon

available information gathered by the department.

     (c) Subject to section 32726, the withdrawal will be

implemented so as to ensure that it is in compliance with all

applicable local, state, and federal laws as well as all legally

binding regional interstate and international agreements, including

the boundary waters treaty of 1909.

     (d) The proposed use is reasonable under common law principles

of water law in Michigan.

     (e) The For permit applications received on or after January

1, 2009, the applicant has considered voluntary generally accepted

water management practices or self-certified that he or she is in

compliance with environmentally sound and economically feasible

water conservation measures developed by the applicable water

user's sector under section 32708a or has self-certified that he or

she is in compliance with environmentally sound and economically

feasible water conservation measures developed for the water use

associated with that specific withdrawal.

     (f) The department determines that the proposed withdrawal

will not violate public or private rights and limitations imposed

by Michigan water law or other Michigan common law duties.

     (7) The department shall issue a water withdrawal permit under

subsection (1)(d) if the transfer complies with section 4.9 of the

compact.

     (8) In reviewing a proposed preventative measure, the

department shall consider the effect of the preventative measure on

preventing an adverse resource impact by diminishing the effect of

the withdrawal on stream or river flow or the temperature regime of

the stream or river. If the department approves a preventative

measure in conjunction with a water withdrawal permit under this

section, the department shall enter into a legally enforceable

implementation schedule for completion of the preventative measure.

     (9) A proposed use for which a water withdrawal permit is

issued under this section shall be considered to satisfy the

requirements of section 4.11 of the compact.

(10) (7) A permit issued under part 31 pursuant to 33 USC

1326(b) shall be considered sufficient to demonstrate that there

will not be an adverse resource impact under section 32721 and

satisfies the conditions for a water withdrawal permit under this

section. Upon receipt of a permit an application under this section

and evidence that the applicant holds a part 31 permit described in

this subsection, the department shall grant the applicant a water

withdrawal permit under this subsection.

(11) (8) The department may revoke a water withdrawal permit

issued under this section if the department determines following a

hearing, based upon clear and convincing scientific evidence, that

the withdrawal is causing an adverse resource impact.

(12) (9) A person who is aggrieved by a determination of the

department under this section related to a water withdrawal permit

may file a sworn petition with the department setting forth the

grounds and reasons for the complaint and asking for a contested

case hearing on the matter pursuant to the administrative

procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. A

petition filed more than 60 days after action on the water

withdrawal permit may be rejected by the department as being

untimely. The department shall issue a final decision on a petition

for a contested case hearing within 6 months after receiving the

petition. A determination, action, or inaction by the department

following a contested case hearing is subject to judicial review as

provided in the administrative procedures act of 1969, 1969 PA 306,

MCL 24.201 to 24.328.

(13) (10) The following withdrawals are not required to obtain

a water withdrawal permit under this section:

     (a) A withdrawal by a community supply owned by a political

subdivision that holds a permit under the safe drinking water act,

1976 PA 399, MCL 325.1001 to 325.1023.

     (b) A person who makes seasonal Seasonal withdrawals of not

more than 2,000,000 gallons of water per day average in any

consecutive 90-day period to supply a common distribution system

unless the withdrawals result in a diversion.

     (c) A person engaged in producing withdrawal for the

production of bottled drinking water who receives approval approved

by the department under a water source review conducted under

section 17 of the safe drinking water act, 1976 PA 399, MCL

325.1017.

     (11) As used in this section:

     (a) "Great Lakes and their connecting waterways" means Lakes

Superior, Michigan, 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 section,

Lakes Huron and Michigan shall be considered a single Great Lake.

     (b) "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 stream that is a direct

tributary to a Great Lake, then the source watershed shall be

considered to be the watershed of that Great Lake, with a

preference for returning water to the direct tributary stream

watershed from which it was withdrawn.

     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) Senate Bill No. 212.

     (b) Senate Bill No. 723.

     (c) Senate Bill No. 727.

     (d) Senate Bill No. 858.

     (e) Senate Bill No. 859.

     (f) Senate Bill No. 860.

     (g) House Bill No. 4343.

     (h) House Bill No. 5065.

     (i) House Bill No. 5066.

     (j) House Bill No. 5067.

     (k) House Bill No. 5073.