HB-5055, As Passed Senate, October 22, 2009

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5055

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 30101, 30102, 30103, and 30104 (MCL 324.30101,

324.30102, 324.30103, and 324.30104), section 30101 as amended by

2006 PA 275, section 30102 as added by 1995 PA 59, section 30103 as

amended by 2006 PA 33, and section 30104 as amended by 2008 PA 276,

and by adding section 30106a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 30101. As used in this part:

(a) "Bottomland" means the land area of an inland lake or

stream that lies below the ordinary high-water mark and that may or

may not be covered by water.

(b) "Bulkhead line" means a line that is established pursuant

to this part beyond which dredging, filling, or construction of any

kind is not allowed without a permit.

embankments, and appurtenant works, that impounds, diverts, or is

designed to impound or divert water.

(d) "Department" means the department of environmental

quality.

(e) "Expand" means to occupy a larger area of an inland lake

or stream than authorized by a permit issued under this part for

marina mooring structures and watercraft moored at the marina.

(f) ~~(e)~~ "Fund" means the land and water management permit fee

fund created in section 30113.

(g) ~~(f)~~ "Height of the dam" means the difference in elevation

measured vertically between the natural bed of an inland lake or

stream at the downstream toe of the dam, or, if it is not across a

stream channel or watercourse, from the lowest elevation of the

downstream toe of the dam, to the design flood elevation or to the

lowest point of the top of the dam, whichever is less.

(h) ~~(g)~~ "Impoundment" means water held back by a dam, dike,

floodgate, or other barrier.

(i) ~~(h)~~ "Inland lake or stream" means a natural or artificial

lake, pond, or impoundment; a river, stream, or creek which may or

may not be serving as a drain as defined by the drain code of 1956,

1956 PA 40, MCL 280.1 to 280.630; or any other body of water that

has definite banks, a bed, and visible evidence of a continued flow

or continued occurrence of water, including the St. Marys, St.

Clair, and Detroit rivers. Inland lake or stream does not include

the Great Lakes, Lake St. Clair, or a lake or pond that has a

surface area of less than 5 acres.

(j) ~~(i)~~ "Marina" means a facility that is owned or operated by

a person, extends into or over an inland lake or stream, and offers

service to the public or members of the marina for docking,

loading, or other servicing of recreational watercraft.

(k) ~~(j)~~ "Minor offense" means either of the following

violations of this part if the project involved in the offense is a

minor project as listed in R 281.816 of the Michigan administrative

code or the department determines that restoration of the affected

property is not required:

(i) The failure to obtain a permit under this part.

(ii) A violation of a permit issued under this part.

(l) "Mooring structures" means structures used to moor

watercraft, including, but not limited to, docks, piers, pilings,

mooring anchors, lines and buoys, and boat hoists.

(m) ~~(k)~~ "Ordinary high-water mark" means the line between

upland and bottomland that persists through successive changes in

water levels, below which the presence and action of the water is

so common or recurrent that the character of the land is marked

distinctly from the upland and is apparent in the soil itself, the

configuration of the surface of the soil, and the vegetation. On an

inland lake that has a level established by law, it means the high

established level. Where water returns to its natural level as the

result of the permanent removal or abandonment of a dam, it means

the natural ordinary high-water mark.

(n) (l) "Project" means an activity that requires a permit

pursuant to section 30102.

(o) ~~(m)~~ "Property owners' association" means any group of

organized property owners publishing a directory of their

membership, the majority of which are riparian owners and are

located on the inland lake or stream that is affected by the

proposed project.

(p) "Reconfigure" means to, without expanding the marina, do

either of the following:

(i) Change the location of the dock or docks and other mooring

structures at the marina to occupy an area of the inland lake or

stream that was not previously authorized by a permit issued under

this part.

(ii) Decrease the distance available for ingress and egress to

an outside slip as described in section 30106a.

(q) "Riparian interest area" means that portion of an inland

lake or stream over which a riparian owner has an ownership

interest.

(r) ~~(n)~~ "Riparian owner" means a person who has riparian

rights.

(s) ~~(o)~~ "Riparian rights" means those rights which are

associated with the ownership of the bank or shore of an inland

lake or stream.

(t) ~~(p)~~ "Seasonal structure" includes any type of dock, boat

hoist, ramp, raft, or other recreational structure that is placed

into an inland lake or stream and removed at the end of the boating

season.

(u) ~~(q)~~ "Structure" includes a ~~marina,~~ wharf, dock, pier, dam,

weir, stream deflector, breakwater, groin, jetty, sewer, pipeline,

cable, and bridge.

(v) ~~(r)~~ "Upland" means the land area that lies above the

ordinary high-water mark.

Sec. 30102. Except as provided in this part, a person without

a permit from the department shall not do any of the following:

(a) Dredge or fill bottomland.

(b) Construct, enlarge, extend, remove, or place a structure

on bottomland.

expand a marina.

(d) Create, enlarge, or diminish an inland lake or stream.

(e) Structurally interfere with the natural flow of an inland

lake or stream.

(f) Construct, dredge, commence, extend, or enlarge an

artificial canal, channel, ditch, lagoon, pond, lake, or similar

waterway where the purpose is ultimate connection with an existing

inland lake or stream, or where any part of the artificial waterway

is located within 500 feet of the ordinary high-water mark of an

existing inland lake or stream.

(g) Connect any natural or artificially constructed waterway,

canal, channel, ditch, lagoon, pond, lake, or similar water with an

existing inland lake or stream for navigation or any other purpose.

Sec. 30103. (1) A permit is not required under this part for

any of the following:

(a) Any fill or structure existing before April 1, 1966, in

waters covered by former 1965 PA 291, and any fill or structures

existing before January 9, 1973, in waters covered for the first

time by former 1972 PA 346.

(b) A seasonal structure placed on bottomland to facilitate

private noncommercial recreational use of the water if it does not

unreasonably interfere with the use of the water by others entitled

to use the water or interfere with water flow.

by a riparian owner.

(d) Construction or maintenance of a private agricultural

drain regardless of outlet.

(e) A waste collection or treatment facility that is ordered

to be constructed or is approved for construction by the

department.

(f) Construction and maintenance of minor drainage structures

and facilities which are identified by rule promulgated by the

department pursuant to section ~~30110(1)~~ 30110. Before such a rule

is promulgated, the rule shall be approved by the majority of a

committee consisting of the director of the department, the

director of the department of agriculture, and the director of the

state transportation department or their designated

representatives. The rules shall be reviewed at least annually.

(g) Maintenance and improvement of all drains legally

established or constructed prior to January 1, 1973, pursuant to

the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630, except

those legally established drains constituting mainstream portions

of certain natural watercourses identified in rules promulgated by

the department under section 30110.

(h) Projects constructed under the watershed protection and

flood prevention act, chapter 656, 68 Stat. 666, 16 USC 1001 to

1008 and 1010.

(i) Construction and maintenance of privately owned cooling or

storage ponds used in connection with a public utility except at

the interface with public waters.

(j) Maintenance of a structure constructed under a permit

issued pursuant to this part and identified by rule promulgated

under section ~~30110(1)~~ 30110, if the maintenance is in place and in

kind with no design or materials modification.

(k) A water withdrawal.

(l) Annual installation of a seasonal dock or docks, pilings,

mooring buoys, or other mooring structures previously authorized by

and in accordance with a permit issued under this part.

(2) As used in this section, "water withdrawal" means the

removal of water from its source for any purpose.

Sec. 30104. (1) A person shall not undertake a project subject

to this part except as authorized by a permit issued by the

department pursuant to part 13. An application for a permit shall

include any information that may be required by the department. If

a project includes activities at multiple locations, 1 application

may be filed for the combined activities.

(2) Except as provided in subsections (3) and (4), until

October 1, 2011, an application for a permit shall be accompanied

by a fee based on an administrative cost in accordance with the

following schedule:

(a) For a minor project listed in R 281.816 of the Michigan

administrative code, or a seasonal drawdown or the associated

reflooding, or both, of a dam or impoundment for the purpose of

weed control, a fee of $50.00. However, for a permit for a seasonal

drawdown or associated reflooding, or both, of a dam or impoundment

for the purpose of weed control that is issued for the first time

after October 9, 1995, an initial fee of $500.00 with subsequent

permits for the same purpose being assessed a $50.00 fee.

(b) For authorization under a general permit, a $50.00 fee.

(i) $50.00 for an expansion of 1-10 slips to an existing

permitted marina.

(ii) $100.00 for a new marina with 1-10 proposed marina slips.

(iii) $250.00 for an expansion of 11-50 slips to an existing

permitted marina, plus $10.00 for each slip over 50.

(iv) $500.00 for a new marina with 11-50 proposed marina slips,

plus $10.00 for each slip over 50.

(v) $1,500.00 if an existing permitted marina proposes

maintenance dredging of 10,000 cubic yards or more or the addition

of seawalls, bulkheads, or revetments of 500 feet or more.

~~(d) For renewal of a marina operating permit, a fee of $50.00.~~

(d) ~~(e)~~ For major projects other than a project described in

subdivision (c)(v), involving any of the following, a fee of

$2,000.00:

(i) Dredging of 10,000 cubic yards or more.

(ii) Filling of 10,000 cubic yards or more.

(iii) Seawalls, bulkheads, or revetments of 500 feet or more.

(iv) Filling or draining of 1 acre or more of wetland

contiguous to a lake or stream.

(v) New dredging or upland boat basin excavation in areas of

suspected contamination.

(vi) Shore projections, such as groins and underwater

stabilizers, that extend 150 feet or more into a lake or stream.

(vii) New commercial docks or wharves of 300 feet or more in

length.

(viii) Stream enclosures 100 feet or more in length.

(ix) Stream relocations 500 feet or more in length.

(x) New golf courses.

(xi) Subdivisions.

(xii) Condominiums.

(e) ~~(f)~~ For all other projects not listed in subdivisions (a)

through ~~(e)~~ (d), a fee of $500.00.

(3) A project that requires review and approval under this

part and 1 or more of the following acts or parts of acts is

subject to only the single highest permit fee required under this

part or the following acts or parts of acts:

(a) Part 303.

(b) Part 323.

(d) Section 3104.

(e) Section 117 of the land division act, 1967 PA 288, MCL

560.117.

(4) If work has been done in violation of a permit requirement

under this part and restoration is not ordered by the department,

the department may accept an application for a permit if the

application is accompanied by a fee equal to 2 times the permit fee

required under this section.

Sec. 30106a. (1) The department shall issue a permit to

construct, expand, or reconfigure a marina if the department

determines that the marina meets the conditions of section 30106

and all of the following conditions:

(a) The marina extends from riparian property of the

applicant.

(b) The marina does not unreasonably interfere with

navigation.

consistently with the correlative rights of other riparians,

including the rights of adjacent riparians.

(2) In order to be designed consistently with the correlative

rights of other riparians as required under subsection (1), the

marina shall be configured so that all boat mooring under any wind

condition will occur solely within the marina's riparian interest

area. Additionally, boat mooring and ingress and egress for an

outside slip shall require a minimum maneuvering distance of 1.5

times the length of the slip. This minimum distance shall be

measured from the end of the slip or, for broadside moorage, the

outside beam of a watercraft moored at the slip, to the boundary of

the marina's riparian interest area.

(3) In order to support the determinations under this section,

the department may require the applicant to do either of the

following:

(a) Submit a riparian interest area estimate survey, sealed by

a licensed surveyor. In making its determination on the need for a

riparian interest area estimate survey, the department shall

consider factors such as the shape of the water body, the location

of the marina on the water body, how much frontage is available to

locate the marina, and the dock and mooring configurations.

(b) Obtain an easement from any affected adjacent riparian

owner authorizing an incursion and record the easement with the

(4) The owner or operator of a marina existing on the

effective date of the amendatory act that added this section that

has not been authorized by a permit issued under this part shall

obtain a permit under this section before expanding or

reconfiguring the marina, or by January 1, 2012, whichever comes

first. The owner or operator of a marina existing on the effective

date of the amendatory act that added this section that has been

authorized by a construction permit under this part does not need

to obtain a new construction permit except to expand or

reconfigure.

(5) As used in this section:

(a) "Marina's riparian interest area" means the riparian

interest area of an applicant for a permit under subsection (1) and

any adjacent area for which the applicant has secured written

authorization from the riparian owner whose interest is or may be

affected.

(b) "Outside slip" means a slip that is accessed from a

location between the boundary of the marina's riparian interest

area and the mooring structure.