July 25, 2007, Introduced by Reps. Coulouris, Sak, LeBlanc, Vagnozzi, Wojno, Bieda, Alma Smith, Byrnes, Accavitti, Kathleen Law, Polidori, Constan, Robert Jones, Clack, Bauer, Simpson, Donigan, Valentine, Warren, Meadows, McDowell, Miller, Young, Melton, Brown, Hammel, Espinoza, Lemmons, Meisner, Sheltrown, Hammon, Tobocman, Corriveau, Farrah, Cushingberry, Jackson, Johnson, Brandenburg and Dean and referred to the Committee on Great Lakes and Environment.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 32721 and 32723 (MCL 324.32721 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 February
28, 2008, a person
shall not make a new or increased large quantity withdrawal from
the waters of the state that causes an adverse resource impact.
(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 highest
annual amount of
water withdrawn as reported under this part for calendar year 2002,
2003, 2004, 2005, or 2006.
(4) This section does not apply to a withdrawal that is
utilized solely for fire suppression.
Sec. 32723. (1) Except as provided in subsection (10), 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 2,000,000 1,000,000
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
1,000,000 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 proposes
to develop withdrawal
capacity
to make a new withdrawal of more than 5,000,000 2,000,000
gallons of water per day from the Great Lakes and their connecting
waterways. to
supply a common distribution system.
(d)
A person who develops proposes
to develop increased
withdrawal
capacity beyond baseline capacity of more than 5,000,000
2,000,000 gallons of water per day from the Great Lakes and their
connecting
waterways. to supply a common distribution system.
(e) A person who proposes to develop withdrawal capacity to
make a new or increased large quantity withdrawal that would result
in more than a 5% reduction in flow in a stream reach.
(f) A person who proposes to develop withdrawal capacity to
make a new or increased large quantity withdrawal from an area
designated as a sensitive water resource under section 32722(7) as
required by the department.
(g) A person who proposes to develop capacity to make a new or
increased large quantity withdrawal that the water withdrawal
assessment tool indicates is likely to cause an adverse resource
impact.
(2) A person shall apply for a permit under this section by
submitting
an application to the department containing the
information
described in section 32706. In addition, until 5 years
after
the effective date of the amendatory act that added this
section,
the applicant shall submit an all
of the following:
(a) A complete hydrogeological study and assessment of water
source, natural features, and soils affected by the withdrawal.
(b) An assessment of the withdrawal's effects on flows and
levels of groundwater, springs, lakes and streams, and wetlands, or
nearby wells. The assessment shall incorporate sufficient baseline
stage and flow data, pump tests of at least 7 days in duration,
pumping rates, precipitation, and recharge input and output data.
However, the pump tests shall be continued for a longer period of
time if the data are insufficient to calculate or predict effects
at the new steady state based on projected pumping.
(c)
An application fee in the amount of $2,000.00
$2,500.00.
(3) The department shall transmit water use reporting 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.
(4) (3)
A permit application 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.
(5)
(4) Within 14 days after the department determines
that an
application received under this section is administratively
complete, the department shall provide public notice of the
application. Before making the determination whether or not to
issue a permit under this section, the department shall provide a
public comment period of at least 60 days. The department shall
make a decision whether to grant or deny a permit under this
section
within 120 180 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 permit under subsection
(1)(c)
or (d) 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 applicant has considered voluntary generally accepted
water
management practices or environmentally sound and
economically
feasible water conservation measures.
(6) If the department determines that authorizing the proposed
withdrawal for a lawful use is consistent with the duty of the
state as trustee for the waters of the state and that the proposed
withdrawal is in the public interest, and that the proposed
withdrawal is in compliance with the requirements of this part, the
department shall issue a permit under this section.
(7) The department shall not authorize a proposed withdrawal
as consistent with the duty of the state as trustee for the waters
of the state and in the public interest under subsection (6) unless
it determines, at a minimum, that the proposed use of the
withdrawal will include environmentally sound and economically
feasible water conservation measures.
(8) The department shall not authorize a proposed withdrawal
as consistent with the state’s duty as trustee for the waters of
the state and in the public interest if it determines any of the
following:
(a) The proposed withdrawal will cause individual or
cumulative adverse resource impacts or otherwise result in an
impairment or unacceptable disruption to aquatic resources.
Cumulative adverse resource impacts under this subdivision shall be
evaluated by the department based upon available information
gathered by the department.
(b) The proposed withdrawal will adversely affect or interfere
with riparian rights or the public trust in any groundwater or
surface waters from which or into which the water to be withdrawn
would otherwise flow.
(c) The proposed withdrawal will interfere with the property
rights of another person to lawful use of water.
(d) The proposed withdrawal does not comply with other
applicable law.
(9) In otherwise determining whether the proposed withdrawal
is in the public interest, the department shall consider, at a
minimum, all of the following:
(a) Whether or not the water withdrawn will be used within the
watershed from which it is withdrawn.
(b) The impact of the withdrawal on other uses of the
groundwater or surface waters from which or into which the water to
be withdrawn would otherwise flow, including uses for recreation,
fish and wildlife, aesthetics, local government, agriculture,
commerce, and industry.
(c) The impact of the withdrawal on water quality.
(d) Whether the proposed withdrawal or use will prevent or
minimize waste of water.
(e) Whether the proposed withdrawal will impair the physical
character of a stream, including materially diminishing the flow,
level, or width of a lake or stream.
(10) A determination under subsection (6) does not limit the
right of a person whose interests have been or will be adversely
affected to institute proceedings in any circuit court against any
person to protect such interests.
(11) The department may impose conditions on a permit issued
under this section as necessary to ensure that the requirements of
this part are met. These conditions may include, but are not
limited to, requiring a permittee to gauge and report the flow of a
stream reach and requiring a reduction of a withdrawal if stream
flow falls below levels specified in the permit.
(12) (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 permit under this section. Upon
receipt
of a permit application and evidence that the applicant
holds
a part 31 permit described in this subsection, the department
shall
grant the applicant a permit under this subsection. However,
the department shall determine whether all other requirements of
this section have been met prior to issuing a permit to such a
facility.
(13) A permit issued under this section shall be valid for not
more than 5 years. For permit reissuance, the department shall
establish a streamlined permit renewal process that allows a permit
holder to demonstrate that there has been no significant change in
the conditions on which the previous permit approval was based.
(14) (8)
The department may revoke a permit
issued under this
section if the department determines following a hearing, based
upon
clear and convincing scientific a
preponderance of the
evidence, that the withdrawal is causing an adverse resource
impact.
(15) (9)
A An interested person who is aggrieved by a
determination
of the department under this section related to a
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 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.
(16) (10)
The following are not required to
obtain a permit
under this section:
(a) 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, is not required to obtain a permit under this
section.
(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.
(b) (c)
A person engaged in producing
bottled drinking water
who
receives approval by the department under a water source review
conducted
under section 17 of the safe
drinking water act, 1976 PA
399, MCL 325.1017.
(17) (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.____ or House Bill No. 5073(request no.
00453'07 *).
(b) Senate Bill No.____ or House Bill No. 5065(request no.
02361'07).
(c) Senate Bill No.____ or House Bill No. 5066(request no.
02362'07).
(d) Senate Bill No.____ or House Bill No. 5067(request no.
02363'07).
(e) Senate Bill No.____ or House Bill No. 5069(request no.
02365'07).
(f) Senate Bill No.____ or House Bill No. 5070(request no.
02366'07).
(g) Senate Bill No.____ or House Bill No. 5071(request no.
02367'07).
(h) Senate Bill No.____ or House Bill No. 5072(request no.
02368'07).