HB-5223, As Passed House, September 16, 2009

SUBSTITUTE FOR

HOUSE BILL NO. 5223

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 3118 and 3120 (MCL 324.3118 and 324.3120),

section 3118 as amended by 2008 PA 2 and section 3120 as added by

2004 PA 91.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 3118. (1) Except as otherwise provided in this section,

until October 1, ~~2009~~ 2011, the department shall collect storm

water discharge fees from persons who apply for or have been issued

storm water discharge permits as follows:

(a) A 1-time fee of $400.00 is required for a permit related

solely to a site of construction activity for each permitted site.

The fee shall be submitted by the permit applicant with his or her

application for an individual permit or for a certificate of

coverage under a general permit. For a permit by rule, the fee

shall be submitted by the construction site permittee along with

his or her notice of coverage. A person needing more than 1 permit

may submit a single payment for more than 1 permit and receive

appropriate credit. Payment of the fee under this subdivision or

verification of prepayment is a necessary part of a valid permit

application or notice of coverage under a permit by rule.

(b) An annual fee of $260.00 is required for a permit related

solely to a storm water discharge associated with industrial

activity or from a commercial site for which the department

determines a permit is needed.

municipal separate storm sewer system, unless the permit is issued

to a city, a village, a township, or a county or is a single permit

authorization for municipal separate storm sewer systems in

multiple locations statewide.

(d) An annual fee for a permit for a municipal separate storm

sewer system issued to a city, village, or township shall be

determined by its population in an urbanized area as defined by the

United States bureau of the census. The fee shall be based on the

latest available decennial census as follows:

(i) For a population of 1,000 people or fewer, the annual fee

is $500.00.

(ii) For a population of more than 1,000 people, but fewer than

3,001 people, the annual fee is $1,000.00.

(iii) For a population of more than 3,000 people, but fewer than

10,001 people, the annual fee is $2,000.00.

(iv) For a population of more than 10,000 people, but fewer

than 30,001 people, the annual fee is $3,000.00.

(v) For a population of more than 30,000 people, but fewer

than 50,001 people, the annual fee is $4,000.00.

(vi) For a population of more than 50,000 people, but fewer

than 75,001 people, the annual fee is $5,000.00.

(vii) For a population of more than 75,000 people, but fewer

than 100,001 people, the annual fee is $6,000.00.

(viii) For a population of more than 100,000 people, the annual

fee is $7,000.00.

(e) An annual fee of $3,000.00 is required for a permit for a

municipal separate storm sewer system issued to a county.

(f) An annual fee for a single municipal separate storm sewer

systems permit authorizing a state or federal agency to operate

municipal separate storm sewer systems in multiple locations

statewide shall be determined in accordance with a memorandum of

understanding between that state or federal agency and the

department and shall be based on the projected needs by the

department to administer the permit.

(2) A storm water discharge permit is not required for a

municipality that does not own or operate a separate storm sewer

system. The department shall not collect storm water discharge fees

under ~~subsection (1)~~ this section from a municipality that does not

own or operate a separate storm sewer system.

(3) ~~The permit~~ Permit fees ~~identified in subsection (1)~~

required under this section are nonrefundable.

(4) A person possessing a permit not related solely to a site

of construction activity as of January 1 shall be assessed a fee.

The department shall notify those persons of their fee assessments

by February 1. Payment shall be postmarked no later than March 15.

Failure by the department to send a fee assessment notification by

the deadline, or failure of a person to receive a fee assessment

notification, does not relieve that person of his or her obligation

to pay the fee. If the department does not meet the February

deadline for sending the fee assessment, the fee assessment is due

not later than 45 days after ~~receiving~~ the permittee receives a fee

notification.

(5) If a storm water permit is issued for a drainage district,

the drainage district is responsible for the applicable fee under

this section.

(6) The department shall assess interest on all fee payments

submitted under this section after the due date. The permittee

shall pay an additional amount equal to 0.75% of the payment due

for each month or portion of a month the payment remains past due.

(7) The department shall forward all fees and interest

payments collected under this section to the state treasurer for

deposit into the fund.

(8) The department shall make payment of the required fee

assessed under this section a condition of issuance or reissuance

of a permit not related solely to a site of construction activity.

(9) In addition to any other penalty provided in this part, if

a person fails to pay the fee required under this section by its

due date, the person is in violation of this part and the

department may undertake enforcement actions as authorized under

this part.

(10) The attorney general may bring an action to collect

overdue fees and interest payments imposed under this section.

(11) If the permit is for a municipal separate storm sewer

system and the population served by that system is different than

the latest decennial census, the permittee may appeal the annual

fee determination and submit written verification of actual

population served by the municipal separate storm sewer system.

(12) A person who wishes to appeal either a fee or a penalty

assessed under this section is limited to an administrative appeal,

in accordance with section 631 of the revised judicature act of

1961, 1961 PA 236, MCL 600.631. The appeal shall be filed within 30

days of the department's fee notification under subsection (4).

(13) As used in this section and section 3119:

(a) "Certificate of coverage" means a document issued by the

department that authorizes a discharge under a general permit.

(b) "Clean water act" means the federal water pollution

control act, 33 USC 1251 to 1387.

disturbance in the existing cover or topography of land that is 5

acres or more in size, for which a national permit is required

pursuant to 40 CFR 122.26(a), and which is described as a

construction activity in 40 CFR 122.26(b)(14)(x). Construction

activity includes clearing, grading, and excavating activities.

Construction activity does not include the practice of clearing,

plowing, tilling soil, and harvesting for the purpose of crop

production.

(d) "Fee" means a storm water discharge fee authorized under

this section.

(e) "Fund" means the storm water fund created in section 3119.

(f) "General permit" means a permit issued authorizing a

category of similar discharges.

(g) "Individual permit" means a site-specific permit.

(h) "Municipal separate storm sewer system" means all separate

storm sewers that are owned or operated by the United States or a

state, city, village, township, county, district, association, or

other public body created by or pursuant to state law, having

jurisdiction over disposal of sewage, industrial wastes, storm

water, or other wastes, including special districts under state

law, such as a sewer district, flood control district, or drainage

district or similar entity, or a designated or approved management

agency under section 208 of the clean water act, 33 USC 1288, that

discharges to waters of the state. Municipal separate storm sewer

system includes systems similar to separate storm sewer systems in

municipalities, such as systems at military bases, large hospital

or prison complexes, and highways and other thoroughfares.

Municipal separate storm sewer system does not include separate

storm sewers in very discrete areas, such as individual buildings.

(i) "Notice of coverage" means a notice that a person engaging

in construction activity agrees to comply with a permit by rule for

that activity.

(j) "Permit" or "storm water discharge permit" means a permit

authorizing the discharge of wastewater or any other substance to

surface waters of the state under the national pollutant discharge

elimination system, pursuant to the clean water act or this part

and the rules and regulations promulgated under that act or this

part.

(k) "Public body" means the United States, the state of

Michigan, a city, village, township, county, school district,

public college or university, or single purpose governmental

agency, or any other body ~~which~~ that is created by federal or state

statute or law.

(l) "Separate storm sewer system" means a system of drainage,

including, but not limited to, roads, catch basins, curbs, gutters,

parking lots, ditches, conduits, pumping devices, or man-made

channels, ~~which~~ that has the following characteristics:

(i) The system is not a combined sewer where storm water mixes

with sanitary wastes.

(ii) The system is not part of a publicly owned treatment

works.

(m) "Storm water" means storm water runoff, snowmelt runoff,

and surface runoff and drainage.

(n) "Storm water discharge associated with industrial

activity" means a point source discharge of storm water from a

facility ~~which~~ that is defined as an industrial activity under 40

CFR 122.26(b)(14)(i-ix and xi).

Sec. 3120. (1) Until October 1, ~~2009~~ 2011, an application for

a new permit, a reissuance of a permit, or a modification of an

existing permit under this part authorizing a discharge into

surface water, other than a storm water discharge, shall be

accompanied by an application fee as follows:

(a) For an EPA major facility permit, $750.00.

(b) For an EPA minor facility individual permit, a CSO permit,

or a wastewater stabilization lagoon individual permit, $400.00.

(2) Within 180 days after receipt of a complete application

for a new or increased use permit, the department shall either

grant or deny the permit, unless the applicant and the department

agree to extend this time period.

(3) By September 30 of the year following the submittal of a

complete application for reissuance of a permit, the department

shall either grant or deny the permit, unless the applicant and the

department agree to extend this time period.

(4) If the department fails to make a decision on an

application within the applicable time period under subsection (2)

or (3), the department shall return to the applicant the

application fee submitted under subsection (1) and the applicant

shall not be subject to an application fee and shall receive a 15%

annual discount on an annual permit fee required for a permit

issued based upon that application.

(5) Until October 1, ~~2009~~ 2011, a person who receives a permit

under this part authorizing a discharge into surface water, other

than a stormwater discharge, is subject to an annual permit fee as

follows:

(a) For an industrial or commercial facility that is an EPA

major facility, $8,700.00.

(b) For an industrial or commercial facility that is an EPA

minor facility, the following amounts:

(i) For a general permit for a low-flow facility, $150.00.

(ii) For a general permit for a high-flow facility, $400.00.

(iii) For an individual permit for a low-flow facility,

$1,650.00.

(iv) For an individual permit for a high-flow facility,

$3,650.00.

the following amounts:

(i) For an individual permit for a facility discharging 500 MGD

or more, $213,000.00.

(ii) For an individual permit for a facility discharging 50 MGD

or more but less than 500 MGD, $20,000.00.

(iii) For an individual permit for a facility discharging 10 MGD

or more but less than 50 MGD, $13,000.00.

(iv) For an individual permit for a facility discharging less

than 10 MGD, $5,500.00.

(d) For a municipal facility that is an EPA minor facility,

the following amounts:

(i) For an individual permit for a facility discharging 10 MGD

or more, $3,775.00.

(ii) For an individual permit for a facility discharging 1 MGD

or more but less than 10 MGD, $3,000.00.

(iii) For an individual permit for a facility discharging less

than 1 MGD, $1,950.00.

(iv) For a general permit for a high-flow facility, $600.00.

(v) For a general permit for a low-flow facility, $400.00.

(e) For a municipal facility that is a CSO facility,

$6,000.00.

(f) For an individual permit for a wastewater stabilization

lagoon, $1,525.00.

(g) For an individual or general permit for an agricultural

purpose, $600.00, unless either of the following applies:

(i) The facility is an EPA minor facility and would qualify for

a general permit for a low-flow facility, in which case the fee

~~would be~~ is $150.00.

(ii) The facility is an EPA major facility that is not a

farmers' cooperative corporation, in which case the fee ~~would be~~ is

$8,700.00.

(h) For a facility that holds a permit issued under this part

but has no discharge and the facility is connected to and is

authorized to discharge only to a municipal wastewater treatment

system, an annual permit maintenance fee of $100.00. However, if a

facility does have a discharge or at some point is no longer

connected to a municipal wastewater treatment system, the annual

permit fee shall be the appropriate fee as otherwise provided in

this subsection.

(6) If the person required to pay an application fee under

subsection (1) or an annual permit fee under subsection (5) is a

municipality, the municipality may pass on the application fee or

the annual permit fee, or both, to each user of the municipal

facility.

(7) The department shall send invoices for annual permit fees

under subsection (5) to all permit holders by December 1 of each

year. The fee shall be based on the status of the facility as of

October 1 of that year. A person subject to an annual permit fee

shall pay the fee not later than January 15 of each year. Failure

by the department to send an invoice by the deadline, or failure of

a person to receive an invoice, does not relieve that person of his

or her obligation to pay the annual permit fee. If the department

does not meet the December 1 deadline for sending invoices, the

annual permit fee is due not later than 45 days after receiving an

invoice. The department shall forward annual permit fees received

under this section to the state treasurer for deposit into the

national pollutant discharge elimination system fund created in

section 3121.

(8) The department shall assess a penalty on all annual permit

fee payments submitted under this section after the due date. The

penalty shall be an amount equal to 0.75% of the payment due for

each month or portion of a month the payment remains past due.

(9) Following payment of an annual permit fee, if a permittee

wishes to challenge its annual permit fee under this section, the

owner or operator shall submit the challenge in writing to the

department. The department shall not process the challenge unless

it is received by the department by March 1 of the year the payment

is due. A challenge shall identify the facility and state the

grounds upon which the challenge is based. Within 30 calendar days

after receipt of the challenge, the department shall determine the

validity of the challenge and provide the permittee with

notification of a revised annual permit fee and a refund, if

appropriate, or a statement setting forth the reason or reasons why

the annual permit fee was not revised. If the owner or operator of

a facility desires to further challenge its annual permit fee, the

owner or operator of the facility has an opportunity for a

contested case hearing as provided for under the administrative

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

(10) The attorney general may bring an action for the

collection of the annual permit fee imposed under this section.

~~(11) Within 30 days after the effective date of the amendatory~~

~~act that added this section, the director of the department shall~~

~~notify each person holding a permit under this part authorizing a~~

~~discharge into surface water, other than a storm water permit, of~~

~~the requirements of this section.~~

(11) ~~(12)~~ As used in this section:

(a) "Agricultural purpose" means the agricultural production

or processing 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, 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. Agricultural

purpose includes an operation or facility that produces wine.

(b) "Combined sewer overflow" means a discharge from a

combined sewer system that occurs when the flow capacity of the

combined sewer system is exceeded at a point prior to the headworks

of a publicly owned treatment works during wet weather conditions.

convey both storm water runoff and sanitary sewage, and ~~which~~ that

contains lawfully installed regulators and control devices that

allow for delivery of sanitary flow to treatment during dry weather

periods and divert storm water and sanitary sewage to surface

waters during storm flow periods.

(d) "CSO facility" means a facility whose discharge is solely

a combined sewer overflow.

(e) "EPA major facility" means a facility that is designated

by the United States environmental protection agency as being a

major facility under 40 ~~C.F.R.~~ CFR 122.2.

(f) "EPA minor facility" means a facility that is not an EPA

major facility.

(g) "Farmers' cooperative corporation" means a farmers'

cooperative corporation organized within the limitations of section

98 of 1931 PA 327, MCL 450.98.

(h) "General permit" means a permit suitable for use at

facilities meeting eligibility criteria as specified in the permit.

With a general permit, the discharge from a specific facility is

acknowledged through a certificate of coverage issued to the

facility.

(i) "High-flow facility" means a facility that discharges 1

MGD or more.

(j) "Individual permit" means a permit developed for a

particular facility, taking into account that facility's specific

characteristics.

(k) "Industrial or commercial facility" means a facility that

is not a municipal facility.

(l) "Low-flow facility" means a facility that discharges less

than 1 MGD.

(m) "MGD" means 1,000,000 gallons per day.

(n) "Municipal facility" means a facility that is designed to

collect or treat sanitary wastewater, and is either publicly or

privately owned, and serves a residential area or a group of

municipalities.

(o) "Wastewater stabilization lagoon" means a type of

treatment system constructed of ponds or basins designed to

receive, hold, and treat sanitary wastewater for a predetermined

amount of time ~~. Wastewater is treated~~ through a combination of

physical, biological, and chemical processes.