February 27, 2018, Introduced by Reps. Rabhi, Sabo, Neeley, Lucido, Hammoud, Elder, LaGrand, Yanez, Brinks, Sowerby and Lasinski and referred to the Committee on Natural Resources.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 32701 (MCL 324.32701), as amended by 2008 PA
179.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 32701. (1) As used in this part:
(a) "Adverse resource impact" means any of the following:
(i) Until February 1, 2009, decreasing the flow of a
river or
stream
by part of the index flow such that the river's or stream's
ability
to support characteristic fish populations is functionally
impaired.
(i) (ii) Beginning February 1, 2009, subject Subject to
subparagraph
(vi), (v), decreasing
the flow of a cold river system
by part of the index flow as follows:
(A) For a cold stream, the withdrawal will result in a 3% or
more reduction in the density of thriving fish populations as
determined by the thriving fish curve.
(B) For a cold small river, the withdrawal will result in a 1%
or more reduction in the density of thriving fish populations as
determined by the thriving fish curve.
(ii) (iii) Beginning February 1, 2009, subject Subject to
subparagraph
(vi), (v), decreasing
the flow of a cold-transitional
river system by part of the index flow such that the withdrawal
will result in a 5% or more reduction in the density of thriving
fish populations as determined by the thriving fish curve.
(iii) (iv) Beginning February 1, 2009, subject Subject to
subparagraph
(vi), (v), decreasing
the flow of a cool river system
by part of the index flow as follows:
(A) For a cool stream, the withdrawal will result in a 10% or
more reduction in the abundance of characteristic fish populations
as determined by the characteristic fish curve.
(B) For a cool small river, the withdrawal will result in a
15% or more reduction in the density of thriving fish populations
as determined by the thriving fish curve.
(C) For a cool large river, the withdrawal will result in a
12% or more reduction in the density of thriving fish populations
as determined by the thriving fish curve.
(iv) (v) Beginning February 1, 2009, subject Subject to
subparagraph
(vi), (v), decreasing
the flow of a warm river system
by part of the index flow as follows:
(A) For a warm stream, the withdrawal will result in a 5% or
more reduction in the abundance of characteristic fish populations
as determined by the characteristic fish curve.
(B) For a warm small river, the withdrawal will result in a
10% or more reduction in the abundance of characteristic fish
populations as determined by the characteristic fish curve.
(C) For a warm large river, the withdrawal will result in a
10% or more reduction in the abundance of characteristic fish
populations as determined by the characteristic fish curve.
(v) (vi) Beginning February 1, 2009, decreasing Decreasing the
flow of a stream or river by more than 25% of its index flow.
(vi) (vii) Decreasing
the level of a lake or pond with a surface
area of 5 acres or more through a direct withdrawal from the lake
or pond in a manner that would impair or destroy the lake or pond
or the uses made of the lake or pond, including the ability of the
lake or pond to support characteristic fish populations, or such
that the ability of the lake or pond to support characteristic fish
populations is functionally impaired. As used in this subparagraph,
lake or pond does not include a retention pond or other
artificially created surface water body.
(b) "Agricultural purpose" means the agricultural production
of plants and animals useful to human beings and includes, but is
not limited to, forages and sod crops, grains and feed crops, field
crops, dairy animals and dairy products, poultry and poultry
products, cervidae, livestock, including breeding and grazing,
equine, fish and other aquacultural products, bees and bee
products, berries, herbs, fruits, vegetables, flowers, seeds,
grasses, nursery stock, trees and tree products, mushrooms, and
other similar products, or any other product, as determined by the
commission of agriculture and rural development, that incorporates
the use of food, feed, fiber, or fur.
(c) "Assessment tool" means the water withdrawal assessment
tool provided for in section 32706a.
(d) "Baseline capacity", subject to subsection (2), means any
of the following, which shall be considered the existing withdrawal
approval amount under section 4.12.2 of the compact:
(i) The following applicable withdrawal capacity as reported to
the department or the department of agriculture and rural
development, as appropriate, by the person making the withdrawal in
the annual report submitted under section 32707 not later than
April 1, 2009 or in the water use conservation plan submitted under
section 32708 not later than April 1, 2009:
(A) Unless reported under a different provision of this
subparagraph, for a quarry or mine that holds an authorization to
discharge under part 31 that includes a discharge volume, the
discharge volume stated in that authorization on February 28, 2006.
(B) The system capacity used or developed to make a withdrawal
on February 28, 2006, if the system capacity and a description of
the system capacity are included in an annual report that is
submitted under this part not later than April 1, 2009.
(ii) If the person making the withdrawal does not report under
subparagraph (i), the highest annual amount of water withdrawn as
reported under this part for calendar year 2002, 2003, 2004, or
2005. However, for a person who is required to report by virtue of
the 2008 amendments to section 32705(2)(d), baseline capacity means
the person's withdrawal capacity as reported in the April 1, 2009
annual report submitted under section 32707.
(iii) For a community supply, the total designed withdrawal
capacity for the community supply under the safe drinking water
act, 1976 PA 399, MCL 325.1001 to 325.1023, on February 28, 2006 as
reported to the department in a report submitted not later than
April 1, 2009.
(e) "Characteristic fish curve" means a fish functional
response curve that describes the abundance of characteristic fish
populations in response to reductions in index flow as published in
the document entitled "Report to the Michigan Legislature in
response to 2006 Public Act 34" by the former groundwater
conservation advisory council dated July 2007, which is
incorporated by reference.
(f) "Characteristic fish population" means the fish species,
including thriving fish, typically found at relatively high
densities in stream reaches having specific drainage area, index
flow, and summer temperature characteristics.
(g) "Cold river system" means a stream or small river that has
the appropriate summer water temperature that, based on statewide
averages, sustains a fish community composed predominantly of cold-
water fish species, and where small increases in water temperature
will not cause a decline in these populations, as determined by a
scientific methodology adopted by order of the commission.
(h) "Cold-transitional river system" means a stream or river
that has the appropriate summer water temperature that, based on
statewide averages, sustains a fish community composed
predominantly of cold-water fish species, and where small increases
in water temperature will cause a decline in the proportion of
cold-water species, as determined by a scientific methodology
adopted by order of the commission.
(i) "Community supply" means that term as it is defined in
section 2 of the safe drinking water act, 1976 PA 399, MCL
325.1002.
(j)
"Compact" means the Great Lakes-St. Lawrence river River
basin water resources compact provided for in part 342.
(k) "Consumptive use" means that portion of water withdrawn or
withheld from the Great Lakes basin and assumed to be lost or
otherwise not returned to the Great Lakes basin due to evaporation,
incorporation into products or agricultural products, use as part
of the packaging of products or agricultural products, or other
processes.
Consumptive use includes a withdrawal of waters of the
Great
Lakes basin that is packaged within the Great Lakes basin in
a
container of 5.7 gallons (20 liters) or less and is bottled
drinking
water as defined in the food code, 2005 recommendations of
the
food and drug administration of the United States public health
service.
(l) "Cool river system" means a stream or river that has the
appropriate summer water temperature that, based on statewide
averages, sustains a fish community composed mostly of warm-water
fish species, but also contains some cool-water species or cold-
water species, or both, as determined by a scientific methodology
adopted by order of the commission.
(m)
"Council" means the Great Lakes-St. Lawrence river River
basin water resources council created in the compact.
(n) "Department" means the department of environmental
quality.
(o) "Designated trout stream" means a trout stream identified
on the document entitled "Designated Trout Streams for the State of
Michigan", as issued under order of the director of the department
of natural resources, FO-210.04, on October 10, 2003.
(p) "Diversion" means a transfer of water from the Great Lakes
basin into another watershed, or from the watershed of 1 of the
Great Lakes into that of another by any means of transfer,
including, but not limited to, a pipeline, canal, tunnel, aqueduct,
channel, modification of the direction of a water course, tanker
ship, tanker truck, or rail tanker but does not apply to water that
is used in the Great Lakes basin or a Great Lake watershed to
manufacture or produce a product that is then transferred out of
the Great Lakes basin or watershed. Diverted has a corresponding
meaning. Diversion includes a transfer of water withdrawn from the
waters of the Great Lakes basin that is removed from the Great
Lakes
basin in a container. greater than 5.7 gallons (20 liters).
Diversion does not include any of the following:
(i) A consumptive use.
(ii) The supply of vehicles, including vessels and aircraft,
whether for the needs of the persons or animals being transported
or for ballast or other needs related to the operation of vehicles.
(iii) Use in a noncommercial project on a short-term basis for
firefighting, humanitarian, or emergency response purposes.
(iv) A transfer of water from a Great Lake watershed to the
watershed of its connecting waterways.
(q) "Environmentally sound and economically feasible water
conservation measures" means those measures, methods, technologies,
or practices for efficient water use and for reduction of water
loss and waste or for reducing a withdrawal, consumptive use, or
diversion that meet all of the following:
(i) Are environmentally sound.
(ii) Reflect best practices applicable to the water use sector.
(iii) Are technically feasible and available.
(iv) Are economically feasible and cost-effective based on an
analysis that considers direct and avoided economic and
environmental costs.
(v) Consider the particular facilities and processes involved,
taking into account the environmental impact, the age of equipment
and facilities involved, the process employed, energy impacts, and
other appropriate factors.
(r) "Farm" means that term as it is defined in section 2 of
the Michigan right to farm act, 1981 PA 93, MCL 286.472.
(s) "Flow-based safety factor" means a protective measure of
the assessment tool that reduces the portion of index flow
available for a withdrawal to 1/2 of the index flow for the purpose
of minimizing the risk of adverse resource impacts caused by
statistical uncertainty.
(t) "Great Lakes" means Lakes Superior, Michigan and Huron,
Erie, and Ontario and their connecting waterways including the St.
Marys
river, River, Lake St. Clair, the St. Clair river, River, and
the
Detroit river. River. For purposes of this definition, Lakes
Huron and Michigan shall be considered a single Great Lake.
(u) "Great Lakes basin" means the watershed of the Great Lakes
and
the St. Lawrence river.River.
(v) "Great Lakes charter" means the document establishing the
principles for the cooperative management of the Great Lakes water
resources, signed by the governors and premiers of the Great Lakes
region on February 11, 1985.
(w) "Great Lakes region" means the geographic region composed
of the states of Illinois, Indiana, Michigan, Minnesota, New York,
Ohio, and Wisconsin, the commonwealth of Pennsylvania, and the
provinces of Ontario and Quebec, Canada.
(x) "Index flow" means the 50% exceedance flow for the lowest
summer flow month of the flow regime, for the applicable stream
reach, as determined over the period of record or extrapolated from
analyses
of the United States geological survey Geological Survey
flow gauges in Michigan. Beginning on October 1, 2008, index flow
shall be calculated as of that date.
(y) "Intrabasin transfer" means a diversion of water from the
source watershed of a Great Lake prior to its use to the watershed
of another Great Lake.
(z) "Lake augmentation well" means a water well used to
withdraw groundwater for the purpose of maintaining or raising
water levels of an inland lake or stream as defined in section
30101.
(aa) "Large quantity withdrawal" means 1 or more cumulative
total withdrawals of over 100,000 gallons of water per day average
in any consecutive 30-day period that supply a common distribution
system.
(bb) "Large river" means a river with a drainage area of 300
or more square miles.
(cc) "New or increased large quantity withdrawal" means a new
water withdrawal of over 100,000 gallons of water per day average
in any consecutive 30-day period or an increase of over 100,000
gallons of water per day average in any consecutive 30-day period
beyond the baseline capacity of a withdrawal.
(dd) "New or increased withdrawal capacity" means new or
additional water withdrawal capacity to supply a common
distribution system that is an increase from the person's baseline
capacity. New or increased capacity does not include maintenance or
replacement of existing withdrawal capacity.
(ee) "Online registration process" means the online
registration process provided for in section 32706.
(ff) "Preventative measure" means an action affecting a stream
or river that prevents an adverse resource impact by diminishing
the effect of a withdrawal on stream or river flow or the
temperature regime of the stream or river.
(gg) "Registrant" means a person who has registered a water
withdrawal under section 32705.
(hh) "River" means a flowing body of water with a drainage
area of 80 or more square miles.
(ii) "Site-specific review" means the department's independent
review under section 32706c to determine whether the withdrawal is
a zone A, zone B, zone C, or zone D withdrawal and whether a
withdrawal is likely to cause an adverse resource impact.
(jj) "Small river" means a river with a drainage area of less
than 300 square miles.
(kk) "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 direct tributary to a Great
Lake, then the source watershed shall be considered to be the
watershed of that Great Lake and its connecting waterways, with a
preference for returning water to the watershed of the direct
tributary from which it was withdrawn.
(ll) "Stream" means a flowing body of water with a drainage
area of less than 80 square miles.
(mm) "Stream reach" means a segment of a stream or river.
(nn) "Thriving fish curve" means a fish functional response
curve that describes the initial decline in density of thriving
fish populations in response to reductions in index flow as
published in the document entitled "Report to the Michigan
Legislature in response to 2006 Public Act 34" by the former
groundwater conservation advisory council dated July 2007, which is
incorporated by reference.
(oo) "Thriving fish population" means the fish species that
are expected to flourish at very high densities in stream reaches
having specific drainage area, index flow, and summer temperature
characteristics.
(pp) "Warm river system" means a stream or river that has the
appropriate summer water temperature that, based on statewide
averages, sustains a fish community composed predominantly of warm-
water fish species, as determined by a scientific methodology
adopted by order of the commission.
(qq) "Waters of the Great Lakes basin" means the Great Lakes
and all streams, rivers, lakes, connecting channels, and other
bodies of water, including groundwater, within the Great Lakes
basin.
(rr) "Waters of the state" means groundwater, lakes, rivers,
and streams and all other watercourses and waters, including the
Great Lakes, within the territorial boundaries of the state. Waters
of the state do not include drainage ways and ponds designed and
constructed solely for wastewater conveyance, treatment, or
control.
(ss) "Withdrawal" means the removal of water from surface
water or groundwater.
(tt) "Zone A withdrawal" means the following:
(i) For a cold river system, as follows:
(A) For a cold stream, less than a 1% reduction in the density
of thriving fish populations as determined by the thriving fish
curve.
(B) For a cold small river, less than 50% of the withdrawal
that would result in an adverse resource impact.
(ii) For a cold-transitional river system, there is not a zone
A withdrawal.
(iii) For a cool river system, as follows:
(A) For a cool stream, less than a 10% reduction in the
density of thriving fish populations as determined by the thriving
fish curve.
(B) For a cool small river, less than a 5% reduction in the
density of thriving fish populations as determined by the thriving
fish curve.
(C) For a cool large river, less than an 8% reduction in the
density of thriving fish populations as determined by the thriving
fish curve.
(iv) For a warm river system, less than a 10% reduction in the
density of thriving fish populations as determined by the thriving
fish curve.
(uu) "Zone B withdrawal" means the following:
(i) There is not a zone B withdrawal for a cold stream or small
river.
(ii) For a cold-transitional river system, less than a 5%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(iii) For a cool river system, as follows:
(A) For a cool stream, a 10% or more but less than a 20%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(B) For a cool small river, a 5% or more but less than a 10%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(C) For a cool large river, an 8% or more but less than a 10%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(iv) For a warm river system, as follows:
(A) For a warm stream, a 10% or more but less than a 15%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(B) For a warm small river or a warm large river, a 10% or
more but less than a 20% reduction in the density of thriving fish
populations as determined by the thriving fish curve.
(vv) "Zone C withdrawal" means the following as long as the
withdrawal will not decrease the flow of a stream or river by more
than 25% of its index flow:
(i) For a cold river system, as follows:
(A) For a cold stream, a 1% or more but less than a 3%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(B) For a cold small river, 50% or more of the withdrawal that
would result in an adverse resource impact but less than a 1%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(ii) There is not a zone C withdrawal for a cold-transitional
river system.
(iii) For a cool river system, as follows:
(A) For a cool stream, a 20% or more reduction in the density
of thriving fish populations as determined by the thriving fish
curve but less than a 10% reduction in the abundance of
characteristic fish populations as determined by the characteristic
fish curve.
(B) For cool small rivers, a 10% or more but less than a 15%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(C) For cool large rivers, a 10% or more but less than a 12%
reduction in the density of thriving fish populations as determined
by the thriving fish curve.
(iv) For warm river systems, as follows:
(A) For warm streams, a 15% or more reduction in the density
of thriving fish populations as determined by the thriving fish
curve but less than a 5% reduction in the abundance of
characteristic fish populations as determined by the characteristic
fish curve.
(B) For warm small rivers and warm large rivers, a 20% or more
reduction in the density of thriving fish populations as determined
by the thriving fish curve but less than a 10% reduction in the
abundance of characteristic fish populations as determined by the
characteristic fish curve.
(ww)
"Zone D withdrawal" means
, beginning February 1, 2009, a
withdrawal that is likely to cause an adverse resource impact.
(2) For purposes of determining baseline capacity, a person
who replaces his or her surface water withdrawal capacity with the
same amount of groundwater withdrawal capacity from the drainage
area of the same stream reach may retain the baseline capacity
established under this section.