HB-5638, As Passed House, June 6, 2018

HB-5638, As Passed Senate, June 6, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5638

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 32706c (MCL 324.32706c), as added by 2008 PA

181.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 32706c. (1) If the assessment tool determines that a

proposed withdrawal with a capacity of 1,000,000 gallons of water

or less per day from the waters of the state to supply a common

distribution system is a zone B withdrawal in a cold-transitional

river system, or a zone C or zone D withdrawal, the property owner

shall may submit to the department a the information described in

section 32706a(3) and either of the following:

     (a) An analysis of the proposed withdrawal by a professional

hydrologist or hydrogeologist calculating the streamflow depletion

of the proposed withdrawal. The analysis shall be based on an

aquifer performance test, streamflow depletion calculations, and

geological data consisting of at least 1 of the following, which

shall be included with the analysis:

     (i) Evidence the proposed withdrawal is in the water

management unit or units that were part of a regional or watershed

based study of water use impacts accepted by the department under

this part. The evidence must include an affidavit by the property

owner that the proposed withdrawal is located in a river system and

aquifer included in the study, and records of applicable data

collected in the study.

     (ii) A hydrogeologic analysis of the water management unit or

units that will potentially be affected by the proposed withdrawal,

incorporating data from well logs, gamma ray logs, surficial maps

of the glacial geology, geologic cross sections, and any other

available hydrogeologic data.

     (b) An analysis by a professional hydrologist or

hydrogeologist of a proposed withdrawal from an aquifer separated

from streams by bedrock, calculating streamflow depletion of the

proposed withdrawal as described in this subdivision by providing

hydrogeologic data demonstrating the bedrock transmissivity for the

formation or relying on published estimates of transmissivity for

the bedrock formation.

     (2) Within 20 working days after the department's actual

receipt of the analysis and supporting evidence and data related to

the proposed withdrawal under subsection (1), the department shall

determine whether a proposed withdrawal is a zone A, zone B, zone

C, or zone D withdrawal and shall provide to the property owner

written notification of its determination. However, if upon a

preliminary review of the analysis and supporting evidence and data

the department determines that the proposed withdrawal will cause a

rejection only under subdivision (d)(iv), the department may,

within the first 20 working days after actual receipt of the

analysis and supporting evidence and data related to the proposed

withdrawal under subsection (1), provide written notification to

the property owner that up to 5 additional working days are needed

for confirmation. If the department does not provide written

notification stating a need for up to 5 additional working days or

if the department cites any other reason under subdivision (d) for

rejection, it must make its determination and provide to the

property owner written notification of its determination within 20

working days after actual receipt of the analysis and supporting

evidence and data related to the proposed withdrawal under

subsection (1). The department's determination is subject to the

following:

     (a) If the department fails to provide written notification to

the property owner within the time period required under this

subsection, the property owner may register the withdrawal and

proceed with the withdrawal.

     (b) If the department determines that the proposed withdrawal

is a zone A or a zone B withdrawal, the property owner may register

the withdrawal and may proceed with the withdrawal.

     (c) If the department determines that the proposed withdrawal

is a zone C withdrawal, the property owner may register the

withdrawal and proceed to make the withdrawal if the property owner

self-certifies that he or she is implementing applicable

environmentally sound and economically feasible water conservation

measures prepared under section 32708a that the property owner

considers to be reasonable or has self-certified that he or she is

implementing applicable environmentally sound and economically

feasible water conservation measures developed for the water use

associated with that specific withdrawal that the property owner

considers to be reasonable. A property owner proceeding under this

subdivision shall provide 5 sets of water level recovery

measurements, as described in an aquifer performance test, taken

after pumping between June and October within 2 years after the

production well is put in service. The department shall not require

submission of additional information or data from a property owner

proceeding under this subdivision.

     (d) If the department determines that the proposed withdrawal

is a zone D withdrawal, the property owner shall not register the

withdrawal and shall not make the withdrawal unless the property

owner applies for a water withdrawal permit under section 32723 and

the withdrawal is authorized under that section, or unless it is

authorized under subsection (4). In addition to the written

notification of its determination under this subsection, if the

department determines that the proposed withdrawal is a zone D

withdrawal, the department shall include documentation

demonstrating that the proposed water withdrawal is likely to cause

an adverse resource impact. The documentation shall include 1 or

more of the following:

     (i) Identification of specific errors in data collection

performed by the professional hydrologist or hydrogeologist that

render the analysis of the proposed withdrawal invalid.

     (ii) A statement that the professional hydrologist or

hydrogeologist used an inapplicable model to analyze the proposed

withdrawal, with an explanation including both why the model

selected for analysis was inapplicable for the proposed withdrawal

and an analysis using an applicable model that shows the proposed

withdrawal is likely to cause an adverse resource impact.

     (iii) Identification of specific errors in the model analysis

performed by the professional hydrologist or hydrogeologist that

render the analysis of the proposed withdrawal invalid.

     (iv) The cumulative streamflow depletion estimated for all the

registered water withdrawals in an impacted watershed management

area is likely to cause an adverse resource impact. The cumulative

streamflow depletion calculation shall account for reevaluation of

previously registered water withdrawals in the affected water

management units using the Hunt, 2003; Ward and Lough, 2011; or a

similar peer-reviewed model that assesses potential stream

depletion.

     (3) After a property owner registers a withdrawal pursuant to

subsection (2), if, in developing the capacity to make the

withdrawal, the conditions of the withdrawal deviate from the

specific data that were evaluated, the property owner shall notify

the department of the corrected data and the department shall

confirm its determination under subsection (2). If the corrected

data do not change the determination, the property owner may

proceed with the withdrawal. If the corrected data change the

determination, the property owner shall proceed under the

provisions of this part related to the corrected determination.

     (4) If a proposed withdrawal is a zone B withdrawal in a cold-

transitional river system, or a zone C or zone D withdrawal, and a

property owner does not submit any of the information described in

subsection (1) or the department determines under subsection (2)

that the proposed withdrawal is a zone D withdrawal, the property

owner may request for a site-specific review. Additionally, if the

assessment tool determines that a proposed withdrawal is a zone A

withdrawal, or a zone B withdrawal in a cool river system or a warm

river system and the property owner wishes to have a site-specific

review, the property owner may submit to the department a request

for a site-specific review. A request for a site-specific review

shall be submitted to the department in a form required by the

department and shall include all of the following:

     (a) The information described in section 32706a(3).

     (b) The intended maximum monthly and annual volumes and rates

of the proposed withdrawal, if different from the capacity of the

equipment used for making the proposed withdrawal.

     (c) If the amount and rate of the proposed withdrawal will

have seasonal fluctuations, the relevant information related to the

seasonal use of the proposed withdrawal.

     (d) A description of how the water will be used and the

location, amount, and rate of any return flow.

     (e) Any other information the property owner would like the

department to consider in making its determination under this

section.

(5) (2) Upon receipt of a request for a site-specific review

under subsection (4), the department shall consider the information

submitted to the department under subsection (1) and shall consider

the actual stream or river flow data of any affected stream reach.

The department shall also apply the drainage area aggregation

integration standards provided in section 32706a(2)(a), (b), and

(c), if applicable, and account for cumulative withdrawals as

provided for in section 32706e. The department shall not rely on

the assessment tool's determination in making its determination

under a site-specific review. The department may calculate

streamflow depletion using Hunt, 2003; Ward and Lough, 2011; or a

similar peer-reviewed model that assesses potential stream

depletion. The calculation of streamflow depletion may also be

conducted on existing withdrawals in the same water management unit

or units as the proposed withdrawal if applicable data are

available. This data may be used to provide additional evidence as

needed to demonstrate whether a proposed withdrawal is likely to

cause an adverse resource impact.

(6) (3) The department shall complete its a site-specific

review within 10 working days of submittal of a request for a site-

specific review. If the department determines, based upon a site-

specific review, that the proposed withdrawal is a zone A or a zone

B withdrawal, the department shall provide written notification to

the property owner and the property owner may register the

withdrawal and may proceed with the withdrawal.

(7) (4) Subject to subsection (5), (8), if the department

determines in conducting a site-specific review that the proposed

withdrawal is a zone C withdrawal, the property owner may register

the withdrawal and proceed to make the withdrawal if the property

owner self-certifies that he or she is implementing applicable

environmentally sound and economically feasible water conservation

measures prepared under section 32708a that the property owner

considers to be reasonable or has self-certified that he or she is

implementing applicable environmentally sound and economically

feasible water conservation measures developed for the water use

associated with that specific withdrawal that the property owner

considers to be reasonable.

(8) (5) Except for withdrawals exempt from obtaining a water

withdrawal permit under section 32723, if a site-specific review

determines that a proposed withdrawal is a zone C withdrawal with

capacity in excess of 1,000,000 gallons of water per day from the

waters of the state to supply a common distribution system, the

person proposing the withdrawal shall not register the withdrawal

and shall not proceed with making the withdrawal unless the person

obtains a water withdrawal permit under section 32723.

(9) (6) If the department determines, based upon a site-

specific review, that the proposed withdrawal is a zone D

withdrawal, the property owner shall not register the withdrawal

and shall not make the withdrawal unless he or she applies for a

water withdrawal permit under section 32723 and the withdrawal is

authorized under that section.

(10) (7) After a property owner registers a withdrawal

following a site-specific review, if, in developing the capacity to

make the withdrawal, the conditions of the withdrawal deviate from

the specific data that were evaluated in the site-specific review,

the property owner shall notify the department of the corrected

data and the department shall confirm its determination under the

site-specific review. If the corrected data do not change the

determination under the site-specific review, the property owner

may proceed with the withdrawal. If the corrected data change the

determination under the site-specific review, the property owner

shall proceed under the provisions of this part related to the

corrected determination.

     (8) Subject to subsection (9), prior to the implementation

date of the assessment tool under section 32706a, a property owner

proposing to develop withdrawal capacity on his or her property to

make a new or increased large quantity withdrawal may submit to the

department a request for an interim site-specific review under this

subsection to determine whether or not the proposed withdrawal is

likely to cause an adverse resource impact. The department, upon

request, shall conduct an interim site-specific review under this

subsection within a reasonable time period not to exceed 30 days

based upon an evaluation of reasonably available information. For

purposes of this part, a determination under an interim site-

specific review under this subsection shall be afforded the same

status as a site-specific review otherwise conducted under this

section.

     (9) Except for withdrawals exempt from obtaining a permit

under section 32723, a property owner who, prior to the

implementation of the assessment tool under section 32706a, intends

to develop withdrawal capacity on his or her property to make a new

or increased large quantity withdrawal of more than 1,000,000

gallons of water per day from the waters of the state to supply a

common distribution system shall obtain an interim site-specific

review under subsection (8). If the interim site-specific review

determines that the proposed withdrawal is a zone C withdrawal, the

property owner shall not proceed with making the withdrawal unless

the person obtains a water withdrawal permit under section 32723.

     (11) Nothing in this section alters any requirement to

disclose information or any exemption from disclosure under the

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, as

otherwise provided under sections 32707(6) and 32708(4).

     (12) As used in this part:

     (a) "Aquifer performance test" means a controlled field test

in which all of the following are done:

     (i) At least 1 monitoring well is installed. The monitoring

well must be installed in the same aquifer and screened at or near

the same depth as the production well, and be located at a distance

of 1 to 5 times the thickness of the aquifer from the proposed

production well. A nearby existing well may be used as a monitoring

well for the test instead if it meets all the monitoring well

requirements.

     (ii) Static water level elevation measurements are taken at 1-

minute intervals for 24 hours before the pumping portion of the

test to an accuracy of 0.05 feet.

     (iii) Pumping is conducted at a rate at or above the desired

production rate for the duration of the test and metered or

periodically measured to ensure consistency of rate.

     (iv) The pumping portion of the test is conducted for a period

of 24 hours in confined aquifers or 72 hours in unconfined

aquifers, during which drawdown measurements are taken at 1-minute

intervals to an accuracy of 0.05 feet.

     (v) After completion of the pumping period, measurements of

water level recovery are taken at 1-minute intervals for 24 hours

to an accuracy of 0.05 feet.

     (vi) An analysis is conducted to determine, at a minimum, the

aquifer hydraulic characteristics of transmissivity and storage

coefficient employing the methods of Cooper and Jacob, 1946; Theis,

1935; Hantush and Jacob, 1955; Hantush and Jacob, 1960; Hantush and

Jacob, 1961; Neuman, 1972; Neuman, 1974; or Hunt and Scott, 2007.

     (b) "Cooper and Jacob, 1946" means Cooper and Jacob, 1946: "A

Generalized Graphical Method for Evaluating Formation Constants and

Summarizing Well-Field History".

     (c) "Hantush and Jacob, 1955" means Hantush and Jacob, 1955:

"Non-Steady Radial Flow in an Infinite Leaky Aquifer".

     (d) "Hantush and Jacob, 1960" means Hantush and Jacob, 1960:

"Modification of the Theory of Leaky Aquifers".

     (e) "Hantush and Jacob, 1961" means Hantush and Jacob, 1961:

"Aquifer Tests on Partially Penetrating Wells".

     (f) "Hunt, 1999" means Hunt, 1999: "Unsteady Stream Depletion

from Ground Water Pumping".

     (g) "Hunt, 2003" means Hunt, 2003: "Unsteady Stream Depletion

When Pumping from Semiconfined Aquifer".

     (h) "Hunt and Scott, 2007" means Hunt and Scott, 2007: "Flow

to a Well in a Two-Aquifer System".

     (i) "Neuman, 1972" means Neuman, 1972: "Theory of Flow in

Unconfined Aquifers Considering Delayed Gravity Response of the

Water Table".

     (j) "Neuman, 1974" means Neuman, 1974: "Effect of Partial

Penetration on Flow in Unconfined Aquifers Considering Delayed

Gravity Response".

     (k) "Professional hydrologist or hydrogeologist" means an

individual holding a license or registration from any state as a

professional hydrologist, hydrogeologist, or geologist, or a

current certification as a professional geologist by the American

Institute of Professional Geology.

     (l) "Streamflow depletion calculation" means an evaluation of

the potential streamflow depletion in which all of the following

are done:

     (i) The streambed conductance of the potentially impacted

streams shall be measured in-situ using slug testing, seepage meter

testing, or both.

     (ii) An aquifer performance test representing the proposed

withdrawal location has been completed.

     (iii) An analysis shall be conducted to calculate streamflow

depletion using the applicable method of Hunt, 1999; Hunt, 2003;

Ward and Lough, 2011; or a similar peer-reviewed model that

assesses potential stream depletion. The analysis may also be

conducted on existing withdrawals in the same water management unit

or units as the proposed withdrawal if applicable data are

available. This may be used to provide additional evidence as

needed to demonstrate a proposed withdrawal is unlikely to cause an

adverse resource impact.

     (m) "Theis, 1935" means Theis, 1935: "The Relation Between the

Lowering of the Piezometric Surface and the Rate and Duration of

Discharge of a Well Using Groundwater Storage".

     (n) "Ward and Lough, 2011" means Ward and Lough, 2011: "Stream

Depletion from Pumping a Semiconfined Aquifer in a Two-Layer Leaky

Aquifer System".