SB-0444, As Passed Senate, April 23, 2014
SUBSTITUTE FOR
SENATE BILL NO. 444
<<A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 3301, 3305, 3306, 3307, 3309, 3311, 30103, and
30113 (MCL 324.3301, 324.3305, 324.3306, 324.3307, 324.3309,
324.3311, 324.30103, and 324.30113), sections 3301, 3305, 3307,
3309, and 3311 as added by 2004 PA 246, section 3306 as amended by
2011 PA 90, section 30103 as amended by 2013 PA 98, and section
30113 as amended by 2006 PA 496, and by adding section 3315.>>
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3301. As used in this part:
(a) "Aquatic invasive species" means an aquatic species that
is nonnative to the ecosystem under consideration and whose
introduction causes or is likely to cause economic or environmental
harm or harm to human health.
(b) (a)
"Aquatic nuisance" means
an organism that lives or
propagates, or both, within the aquatic environment and that
impairs the use or enjoyment of the waters of the state, including
the intermediate aquatic hosts for schistosomes that cause
swimmer's itch.
(c) (b)
"Certificate of coverage"
means written authorization
from the department to implement a project under a general permit.
(d) (c)
"Department" means the
department of environmental
quality.
(e) (d)
"Director" means the
director of the department.
Sec. 3305. (1) A chemical shall not be used in waters of the
state for aquatic nuisance control unless it is registered with the
EPA, pursuant to section 3 of the federal insecticide, fungicide,
and rodenticide act, 7 USC 136a, and the Michigan
department of
agriculture and rural development, pursuant to part 83, for the
aquatic nuisance control activity for which it is used. The
department shall not deny a permit or certificate of coverage
because of the specific chemical proposed to be used, if the
chemical is so registered, unless the department has worked with
the applicant to identify an appropriate alternative chemical that
satisfies the department's concern and no such chemical is
available.
(2) The department may conduct evaluations of the impacts and
effectiveness of any chemicals that are proposed for use for
aquatic nuisance control in waters of the state. This may include
the issuance of permits for field assessments of the chemicals.
(3) The director, in consultation with the director of the
Michigan
department of agriculture and rural development, may issue
an order to prohibit or suspend the use of a chemical for aquatic
nuisance control if, based on substantial scientific evidence, use
of the chemical causes unacceptable negative impacts to human
health or the environment. The department shall not issue permits
authorizing the use of such chemicals. In addition, a person shall
cease the use of such chemicals upon notification by the
department.
Sec.
3306. (1) Until October 1, 2015, 2014, an application for
a certificate of coverage under this part shall be accompanied by a
fee
of $75.00. Until October 1, 2015, subject Subject to subsection
(2), an application for an individual permit under this part shall
be accompanied by the following fee, based on the size of the area
of impact:
(a) Less than 1/2 acre, $75.00.
(b)
One-half 1/2 acre or more but less than 5 acres, $200.00.
(c)
Five 5 acres or more but less than 20 acres, $400.00.
(d)
Twenty 20 acres or more but less than 100 acres, $800.00.
(e)
One hundred 100 acres or more, $1,500.00.
(2)
The department shall forward fees collected under this
section
to the state treasurer for deposit in the land and water
management
permit fee fund created in section 30113.
(2) For the 2014-2015 state fiscal year and each subsequent
fiscal year, the department shall proportionately adjust the
certificate of coverage and permit application fees under
subsection (1) by category to achieve a target in fee revenue under
subsection (1) and shall post the adjusted fees on its website by
November 1. The department shall set the target so that the annual
cumulative total of the target amount plus all of the following
equals, as nearly as possible, $900,000.00:
(a) The total amount of annual fees to be collected under
section 3309 in the state fiscal year.
(b) The amount of general funds appropriated to the program
under this part.
(c) The amount in the aquatic nuisance control fund created
under subsection (4) in excess of $100,000.00 carried forward from
the prior state fiscal year.
(3) Notwithstanding any other provision of this section, fees
as adjusted under subsection (2) shall be proportional to and shall
not exceed the amounts set forth in subsection (1). For each state
fiscal year beginning with the 2015-2016 state fiscal year, the
state treasurer shall adjust the $900,000.00 figure in subsection
(2) by an amount determined by the state treasurer at the end of
the preceding fiscal year to reflect the cumulative annual
percentage change in the consumer price index. As used in this
subsection, "consumer price index" means the most comprehensive
index of consumer prices available for this state from the bureau
of labor statistics of the United States department of labor.
(4) The aquatic nuisance control fund is created in the state
treasury. The department shall forward all fees collected under
this section, section 3309, and section 3311 to the state treasurer
for deposit into the fund. The state treasurer may receive money or
other assets from any other source for deposit into the fund. The
state treasurer shall direct the investment of the fund. The state
treasurer shall credit to the fund interest and earnings from fund
investments. Money in the fund at the close of the fiscal year
shall remain in the fund and shall not lapse to the general fund.
The department shall be the administrator of the fund for auditing
purposes. The department shall expend money from the fund, upon
appropriation, only for the administration of this part, including,
but not limited to, the following:
(a) Issuance of certificates of coverage and permits.
(b) Technology and reasonable laboratory costs to operate the
program under this part.
(c) Compliance and enforcement activities related to aquatic
nuisance control.
(d) Education of aquatic herbicide applicators, local and
state government agencies, lake boards, lakefront property owners,
and the general public about aquatic nuisance control and the
requirements of this part. The director may contract with a
nonprofit educational organization to administer an educational
program as described in this subdivision.
(5) A fee under this section, section 3309, or section 3311
may be paid by credit or debit card or electronic fund transfer.
The department shall determine which major credit and debit cards
may be used to pay a fee. If a fee is paid by credit or debit card,
the department may collect a service assessment from the user of
the credit or debit card. The service assessment shall not exceed
the actual cost to the department of the credit or debit card
transaction.
(6) The department shall not charge a fee for an amendment to
an application for a certificate of coverage or permit, including
an amendment to an application after that application has been
resubmitted under section 3307(7).
Sec. 3307. (1) An application for a certificate of coverage or
permit may be submitted electronically.
(2)
(1) The department shall either approve or deny an
application
for a certificate of coverage by May 1 or within the
latest of the following dates:
(a) April 15.
(b)
15 working days after receipt of a
complete application. ,
whichever
is later.
(c) Any date requested by the applicant for the certificate of
coverage and agreed to by the department.
(3) If the department denies an application for a certificate
of coverage, the department shall notify the applicant, in writing,
of the reasons for the denial.
(4) (2)
The department shall approve an
application for a
permit in whole or part and issue the permit, or shall deny the
application,
by May 1 or within the
latest of the following dates:
(a) April 15.
(b)
30 working days after receipt of a
complete application ,
whichever
is later.except that this
approval time is reduced to 15
working days after receipt of a complete application if the
waterbody is listed on the registry under section 3315 as being
infested with the particular aquatic invasive species that the
applicant proposes to control under the permit.
(c) Any date requested by the permit applicant and agreed to
by the department.
(5) The department shall not delay processing an application
for a permit or certificate of coverage because the department has
not completed processing of the fee payment accompanying the
application. This subsection does not apply to an applicant if a
previous fee payment offered by the applicant under section 3306 or
section 3309 failed because of nonsufficient funds.
(6) If the department approves the application for a permit in
part
or denies the application, the department shall, by the same
deadline for approval or denial of the application, notify the
applicant, in writing, of the reasons for the partial approval or
denial.
(7) The department shall not deny an application for a
certificate of coverage or a permit because it was submitted after
a certain date in the year in which treatment is proposed. If the
department approves an application in part or denies an
application, the applicant may resubmit the application with
changes to address the reasons for partial approval or denial. The
resubmitted application is not subject to an additional fee.
(8) (3)
If the department fails to satisfy
the requirements of
subsection
(1) or (2) subsections (2) to
(7) with respect to an
application
for a certificate of coverage or a permit, the all of
the following apply:
(a) The department shall pay the applicant an amount equal to
15% of the application fee specified under section 3306 for that
certificate of coverage or permit.
(b) The application shall be considered to be approved and the
department shall be considered to have made any determination
required for approval if all of the following apply:
(i) The proposed area of impact is the same as or entirely
contained within the area of impact approved in a previous permit.
(ii) The active ingredient or trade name of each chemical
proposed to be applied is the same as approved in a previous permit
and each chemical is currently approved for use by the department.
(iii) The application rate and number of treatments do not
exceed those approved in the previous permit.
(iv) The minimum length of time between treatments is not less
than that approved in the previous permit.
Sec. 3309. (1) The term of a certificate of coverage shall not
be less than 3 years unless the applicant requests a shorter term.
(2) A permit under this part shall, at a minimum, include all
of the following information:
(a) The active ingredient or the trade name of each chemical
to be applied.
(b) The application rate of each chemical.
(c) The maximum amount of each chemical to be applied per
treatment.
(d) Minimum length of time between treatments for each
chemical.
(e) A map or maps that clearly delineate the approved area of
impact.
(f) The term of the permit. The term shall not be less than 3
years unless the applicant requests a shorter term.
(3) A permit under this part shall authorize chemical
treatment in each year covered by the permit. This subsection does
not apply to a chemical if the chemical's annual use is restricted
in rules that were in effect on the effective date of the
amendatory act that added this subsection.
(4) By April 1 of the second and each subsequent year of a
permit, the permittee shall pay the department an annual fee. The
annual fee shall equal the permit application fee paid for that
specific permit under section 3306 including, for annual fees due
after the initial treatment of an expanded area of impact under
section 3311(3), the additional fee under section 3311(3)(e). If an
annual fee is not received by the department by April 1, the permit
is suspended until the annual fee is paid. When the application fee
for a permit is paid, an applicant may choose to also pay in
advance all the annual fees that will become due under this
subsection if the permit is granted for the term requested by the
applicant. If the application is denied or is granted for a shorter
period than the applicant requested, the department shall refund
the overpayment of annual fees.
(5) (2)
The department may impose
additional conditions on a
permit under this part to protect the natural resources or the
public health, to prevent economic loss or impairment of
recreational uses, to protect nontarget organisms, or to help
ensure control of the aquatic nuisance.
Sec.
3311. (1) The department may make minor revisions to a
permit under this part, to minimize the impacts to the natural
resources,
public health, and safety , or to
improve aquatic
nuisance
control, if the proposed revisions do not involve a change
in
the scope of the project , and the permittee requests the
revisions in writing. The department shall not charge a fee for a
request for revisions to a permit. The department shall approve a
request for revisions to a permit in whole or in part or deny the
request within 3 business days after the request is received. The
request shall include all of the following information:
(a) The proposed changes to the permit.
(b) An explanation of the necessity for the proposed changes.
(c) Maps that clearly delineate any proposed changes to the
area of impact.
(d) Additional information that would help the department
reach a decision on a permit amendment.
(2) If the permittee has written authorization to act on
behalf of a person described in section 3303(4)(a), (b), or (c),
upon written request of that person, the department shall transfer
the permit to a new permittee with written authorization to act on
behalf of that person. The department shall notify the original
permittee of the transfer of the permit.
(3) Subject to subsection (4), a permittee may, without a
revision to the permit or certificate of coverage, expand the area
of impact beyond that authorized in the permit or certificate of
coverage to include adjacent areas of the same waterbody that
become infested after the application for the permit or certificate
of coverage was submitted to the department. The permittee may
increase the amount of chemicals used, as authorized in the permit
or certificate of coverage, by an amount proportionate to the
expansion in the area of impact. Before the initial treatment of
the expanded area, the permittee shall notify the department. The
permittee shall, within 15 business days after the initial
treatment of the expanded area of impact, provide the department
with all of the following:
(a) A written explanation of the necessity for the expansion
of the area of impact.
(b) A map that clearly delineates the changes to the area of
impact.
(c) A written statement specifying the increase in the amount
of chemicals used or to be used as a result of the expansion of the
area of impact.
(d) The treatment dates for the expanded area of impact.
(e) If the permit application fee under section 3306 would
have been higher if the expanded area of impact had been included
in the permit application, a fee equal to the difference between
the application fee paid and the application fee that would have
been due.
(4) If the area of impact authorized in a permit or
certificate of coverage is greater than 100 acres, a permittee
shall not expand the area of impact under subsection (3) by more
than 50% unless both of the following apply:
(a) The permittee has notified the department in advance of
the proposal to expand the area of impact. The notification shall
include the information described in subsection (3)(a) and (b).
(b) The department has not, within 2 business days after
receiving notification under subdivision (a), notified the
permittee of specific concerns about the proposal and that the
proposal requires a revision of the permit or certificate of
coverage.
Sec. 3315. The department shall post, by January 1, 2016, and
maintain on its website a registry of waterbodies infested by
aquatic invasive species and the particular aquatic invasive
species infesting each waterbody. The registry shall be based on
information from all of the following:
(a) Permits and certificates of coverage issued under this
part.
(b) Reports received by the department from any of the
following:
(i) Certified applicators or registered applicators under part
83.
(ii) Representatives of public or private institutions of
higher education.
(iii) Representatives of any other state, local, or federal
agency with responsibility for the environment or natural
resources.
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.
(c) Reasonable sanding of beaches to the existing water's edge
by
a the riparian owner or a person authorized by the riparian
owner.
(d) Maintenance of an agricultural drain, regardless of
outlet, if all of the following requirements are met:
(i) The maintenance includes only activities that maintain the
location, depth, and bottom width of the drain as constructed or
modified at any time before July 1, 2014.
(ii) The maintenance is performed by the landowner or pursuant
to the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630.
(e) A waste collection or treatment facility that is ordered
to be constructed or is approved for construction under state or
federal water pollution control law, if constructed in upland.
(f) Construction and maintenance of minor drainage structures
and facilities which are identified by rule promulgated by the
department pursuant to section 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 rural development,
and the director of the state transportation department or their
designated representatives. The rules shall be reviewed at least
annually.
(g) Maintenance of a drain that either was legally established
and constructed before 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, or was constructed or modified
under a permit issued pursuant to this part. As used in this
subdivision, "maintenance of a drain" means the physical
preservation of the location, depth, and bottom width of a drain
and appurtenant structures to restore the function and approximate
capacity of the drain as constructed or modified at any time before
July 1, 2014, and includes, but is not limited to, the following
activities if performed with best management practices:
(i) Excavation of accumulated sediments back to original
contours.
(ii) Reshaping of the side slopes.
(iii) Bank stabilization where reasonably necessary to prevent
erosion. Materials used for stabilization must be compatible with
existing bank or bed materials.
(iv) Armoring, lining, or piping if a previously armored,
lined, or piped section is being repaired and all work occurs
within the footprint of the previous work.
(v) Replacement of existing control structures, if the
original function of the drain is not changed and the original
approximate capacity of the drain is not increased.
(vi) Repair of stabilization structures.
(vii) Culvert replacement, including culvert extensions of not
more than 24 additional feet per culvert.
(viii) Emergency reconstruction of recently damaged parts of the
drain. Emergency reconstruction must occur within a reasonable
period of time after damage occurs in order to qualify for this
exemption.
(h) Projects constructed under the watershed protection and
flood prevention act, chapter 656, 68 Stat. 666, 16 USC 1001 to
1008, and
1010, and 1011.
(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, 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.
(m) Controlled access of livestock to streams for watering or
crossing if constructed in accordance with applicable practice
standards set by the United States department of agriculture,
natural resources conservation service.
(n) Temporary drawdowns of impoundments at hydroelectric
projects licensed by the federal energy regulatory commission
(FERC) and subject to FERC's authority if both of the following
apply:
(i) The FERC licensee has consulted this state during the
drawdown plan development and this state's concerns have been
addressed in the drawdown plan as FERC considers appropriate.
(ii) Adverse environmental impacts, including stream flow,
aquatic resources, and timing, have been avoided and minimized to
the extent practical.
(o) Removal, by the riparian owner or a person authorized by
the riparian owner, of plants that are an aquatic nuisance as
defined in section 3301, if the removal is accomplished by hand-
pulling without using a powered or mechanized tool and all plant
fragments are removed from the water and properly disposed of on
land above the ordinary high-water mark as defined in section
30101.
(p) Raking, by the riparian owner or a person authorized by
the riparian owner, of areas of bottomlands that are unvegetated
and predominantly composed of sand or pebbles, without using a
powered or mechanized tool, to minimize disturbance to the
bottomlands. For the purposes of this subdivision, the pulling of a
nonpowered, nonmechanized tool with a boat is not the use of a
powered or mechanized tool.
(2) As used in this section, "water withdrawal" means the
removal of water from its source for any purpose.
(3) As used in this part, "agricultural drain" means a human-
made conveyance of water that meets all of the following
requirements:
(a) Does not have continuous flow.
(b) Flows primarily as a result of precipitation-induced
surface runoff or groundwater drained through subsurface drainage
systems.
(c) Serves agricultural production.
(d) Was constructed before January 1, 1973, or was constructed
in compliance with this part or former 1979 PA 203.
Sec. 30113. (1) The land and water management permit fee fund
is created within the state treasury.
(2) The state treasurer may receive money or other assets from
any source for deposit into the fund. The state treasurer shall
direct the investment of the fund. The state treasurer shall credit
to the fund interest and earnings from fund investments. The state
treasurer shall annually present to the department an accounting of
the amount of money in the fund. The department shall be the
administrator of the fund for auditing purposes.
(3) Money in the fund at the close of the fiscal year shall
remain in the fund and shall not lapse to the general fund.
(4) The department shall expend money from the fund, upon
appropriation, only to implement this part and the following:
(a) Sections 3104, 3107, and 3108.
(b)
Before October 1, 2004, section 12562 of the public health
code,
1978 PA 368, MCL 333.12562, or, on or after October 1, 2004,
part
33.
(b) (c)
Part 303.
(c) (d)
Part 315.
(d) (e)
Part 323.
(e) (f)
Part 325.
(f) (g)
Part 339.
(g) (h)
Part 353.
(h) (i)
Section 117 of the land division
act, 1967 PA 288, MCL
560.117.
(5) The department shall annually report to the legislature
how money in the fund was expended during the previous fiscal year.