HB-5068, As Passed House, June 4, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 5068

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 32721, 32722, and 32723 (MCL 324.32721,

324.32722, and 324.32723), as added by 2006 PA 33.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 32721. (1) A person shall not make a new or increased

large quantity withdrawal from the waters of the state that causes

an adverse resource impact. to a designated trout stream.

     (2) Beginning 2 years after the effective date of the

amendatory act that added this section, a person shall not make a

new or increased large quantity withdrawal from the waters of the

state that causes an adverse resource impact.

(2) (3) This section does not apply to the baseline capacity

of a large quantity withdrawal or a well capable of making a large

quantity withdrawal that existed on the effective date of the

amendatory act that added this section February 28, 2006.

(3) (4) This section does not apply to a withdrawal that is

utilized solely for fire suppression.

     Sec. 32722. (1) Until a water withdrawal assessment tool

becomes effective upon legislative enactment pursuant to the

recommendations of the groundwater conservation advisory council

under section 32803 For new or increased large quantity withdrawals

developed on or after February 28, 2006 and prior to the

implementation date of the assessment tool under section 32706a,

there is a rebuttable presumption that a new or increased large

quantity the withdrawal will not cause an adverse resource impact

in violation of section 32721 under either of the following

circumstances:

     (a) The location of the withdrawal is more than 1,320 feet

from the banks of a designated trout an affected stream reach.

     (b) The withdrawal depth of the well is at least 150 feet.

     (2) If the assessment tool determines that a withdrawal is a

zone A or a zone B withdrawal and is not likely to cause an adverse

resource impact, there is a rebuttable presumption that the

withdrawal under the conditions that were the basis for the

assessment tool's determination will not cause an adverse resource

impact in violation of section 32721.

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

review, or in connection with a permit or approval issued under

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

325.1001 to 325.1023, that a withdrawal is not likely to cause an

adverse resource impact, there is a rebuttable presumption that the

withdrawal under the conditions that were the basis of the

department's determination will not cause an adverse resource

impact in violation of section 32721.

     (4) (2) A presumption under this section is not valid if the

capacity to make the withdrawal is not developed within 18 months

after the withdrawal is registered. A presumption under subsection

(1) this section may be rebutted by a preponderance of evidence

that a new or increased large quantity withdrawal from the waters

of the state has caused or is likely to cause an adverse resource

impact.

     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 the capacity to make a

new or increased large quantity withdrawal that a site-specific

review determines is a zone C withdrawal if either of the following

conditions exists:

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

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

     (ii) 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.

     (d) A person who proposes a new or increased withdrawal 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, the

information described in section 32706c(1), if not previously

provided, other information necessary for the department to

determine if the conditions of subsection (6) are met, and any

other information the property owner would like the department to

consider in making its determination. If the applicant proposes to

undertake restorative measures along with the withdrawal, the

property owner shall provide the department with a detailed

description of the restorative measures and relevant information as

to how they 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.

     (g) The department in making its determination under this

section shall act in a manner that conforms with its duties as set

forth in section 32702(1)(c).

     (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) If the department approves restorative measures in

conjunction with a water withdrawal permit under this section, the

department shall enter into a legally enforceable implementation

schedule for completion of the restorative measures.

     (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 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 as long as the

withdrawals do not 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) House Bill No. 4343.

     (b) House Bill No. 5065.

     (c) House Bill No. 5066.

     (d) House Bill No. 5067.

     (e) House Bill No. 5069.

     (f) House Bill No. 5070.

     (g) House Bill No. 5071.

     (h) House Bill No. 5072.

     (i) House Bill No. 5073.