House Introduced Bill 5904

HOUSE BILL No. 5904

June 20, 2000, Introduced by Reps. Dennis, Callahan, Switalski, Mans, Woodward, Baird, O'Neil, Wojno, Minore, Bovin,
Gieleghem, Clark, Hardman, Rivet, Pestka, Frank, Bogardus, Jamnick, Hale, Neumann, Basham, Clarke, Hansen, Thomas, Schauer,
Vaughn, Price, Brater, Martinez, Prusi, Schermesser, DeHart, Brewer, Kelly, Lockwood and LaForge and referred to the Committee on
Conservation and Outdoor Recreation.

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 35301, 63701, 63702, 63704, 63708, 63709,

and 63711 (MCL 324.35301, 324.63701, 324.63702, 324.63704,

324.63708, 324.63709, and 324.63711), section 35301 as amended by

1995 PA 262 and sections 63701, 63702, 63704, 63708, 63709, and

63711 as added by 1995 PA 57.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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Sec. 35301. As used in this part:

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(a) "Contour change" includes any grading, filling, digging,

3
or excavating that significantly alters the physical characteris-

4
tic of a critical dune area, except that which is involved in

5
sand dune mining as defined in part 637.

6
(b) "Crest" means the line at which the first lakeward

7
facing slope of a critical dune ridge breaks to a slope of less

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than 1-foot vertical rise in a 5-1/2-foot horizontal plane for a

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distance of at least 20 feet, if the areal extent where this

3
break occurs is greater than 1/10 acre in size.

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(c) "Critical dune area" means a geographic area designated

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in the "atlas of critical dune areas" dated February 1989, that

6
WHICH was prepared by the department, AS MODIFIED BY THE DOCUMENT

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ENTITLED "EVALUATION OF CRITICAL DUNE AREAS DESIGNATED UNDER

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PART 353 (SAND DUNE PROTECTION AND MANAGEMENT) OF THE NATURAL

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RESOURCES AND ENVIRONMENTAL PROTECTION ACT 1994 PA 451: FINAL

10
REPORT." CENTER FOR REMOTE SENSING, MICHIGAN STATE UNIVERSITY.

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EAST LANSING, MICHIGAN. JUNE 1996.

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(d) "Department" means the department of environmental

13
quality.

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(e) "Foredune" means 1 or more low linear dune ridges that

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are parallel and adjacent to the shoreline of a Great Lake and

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are rarely greater than 20 feet in height. The lakeward face of

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a foredune is often gently sloping and may be vegetated with dune

18
grasses and low shrub vegetation or may have an exposed sand

19
face.

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(f) "Model zoning plan" means the model zoning plan provided

21
for in sections 35312 to 35324.

22
(g) "Planning commission" means the body or entity within a

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local government that is responsible for zoning and land use

24
planning for the local unit of government.

25
(h) "Restabilization" means restoration of the natural con-

26
tours of a critical dune to the extent practicable, and the

27
restoration of the protective vegetative cover of a critical dune

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through the establishment of indigenous vegetation, and the

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placement of snow fencing or other temporary sand trapping mea-

3
sures for the purpose of preventing erosion, drifting, and slump-

4
ing of sand.

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(i) "Special use project" means any of the following:

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(i) A proposed use in a critical dune area for an industrial

7
or commercial purpose regardless of the size of the site.

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(ii) A multifamily use of more than 3 acres.

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(iii) A multifamily use of 3 acres or less if the density of

10
use is greater than 4 individual residences per acre.

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(iv) A proposed use in a critical dune area, regardless of

12
size of the use, that the planning commission, or the department

13
if a local unit of government does not have an approved zoning

14
ordinance, determines would damage or destroy features of archae-

15
ological or historical significance.

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(j) "Use" means a developmental, silvicultural, or recrea-

17
tional activity done or caused to be done by a person that sig-

18
nificantly alters the physical characteristic of a critical dune

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area or a contour change done or caused to be done by a person.

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Use does not include sand dune mining as defined in part 637.

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(k) "Zoning ordinance" means an ordinance of a local unit of

22
government that regulates the development of critical dune areas

23
within the local unit of government pursuant to the requirements

24
of this part.

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Sec. 63701. As used in this part:

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(a) "Active cell-unit" means a cell-unit set forth in the

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approved progressive cell-unit mining and reclamation plan

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provided for in section 63706(1), in which vegetation and topsoil

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have been removed in preparation for sand dune mining or sand

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removal has been initiated after the date of issuance of the sand

4
dune mining permit. Vegetation removal does not preclude the

5
removal of marketable forest products from a cell-unit, if the

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removal maintains the ground cover and topsoil within the

7
cell-unit in stable condition.

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(b) "Administratively complete" means an application for a

9
sand dune mining permit that is determined by the department to

10
satisfy all of the conditions of this part and rules promulgated

11
under this part.

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(c) "Barrier dune" means the first landward sand dune forma-

13
tion along the shoreline of a Great Lake or a sand dune formation

14
designated by the department.

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(d) "Beneficiation" means to process sand for any of the

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following purposes, but does not include the drying process:

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(i) Regulating the grain size of the desired product.

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(ii) Removing unwanted constituents.

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(iii) Improving the quality and purity of the desired

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product.

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(e) "Cell-unit" means a subunit of the total sand dune

22
mining project as determined in size and location by the

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operator. A cell-unit shall not exceed 10 acres in size for sand

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dune mining operations that commence operation after March 31,

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1977 or for the expansion of sand dune mining operations that

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existed before March 31, 1977. A cell-unit shall not exceed 30

27
acres in size for operations that existed before March 31, 1977.

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(f) "Conformance bond" means a surety bond that is executed

2
by a surety company authorized to do business in this state,

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cash, certificates of deposit, letters of credit, or other secur-

4
ities that are filed by an operator to ensure compliance with

5
this part, rules promulgated under this part, or conditions of a

6
sand dune mining permit.

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(g) "Environmental elements" means the biological, physical,

8
and chemical characteristics of the environment, including but

9
not limited to the following:

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(i) Watersheds.

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(ii) Water bodies.

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(iii) Forests.

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(iv) Existing areas maintained for public recreation.

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(v) Shorelands.

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(vi) Habitat areas.

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(h) "Great Lakes" means any of the Great Lakes that have a

17
shoreline within this state.

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(i) "Interim cell-unit status" means a cell-unit as set

19
forth in an approved progressive cell-unit mining and reclamation

20
plan provided for in section 63706(1), in which all sand dune

21
mining and reclamation within the cell-unit has been completed,

22
but the vegetation has not sustained itself through 1 full grow-

23
ing season. A cell-unit placed in interim cell-unit status is

24
required to retain the conformance bond provided in section 63712

25
until reclassification by the department as provided in section

26
63712(5). Each sand dune mining activity shall be limited to no

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more than 3 cell-units in interim cell-unit status at any 1

2
time.

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(j) "Operator" means an owner or lessee of mineral rights or

4
any other person engaged in or preparing to engage in sand dune

5
mining activities with respect to mineral rights within a sand

6
dune area.

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(k) "Sand dune area" means that area designated by the

8
department that includes those geomorphic features composed pri-

9
marily of sand, whether windblown or of other origin and that

10
lies within 2 miles of the ordinary high-water mark on a Great

11
Lake as defined in section 32502, and includes critical dune

12
areas as defined in part 353.

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(l) "Sand dune mining" means the removal of sand from sand

14
dune areas for commercial or industrial purposes, or both. The

15
removal of sand from sand dune areas in volumes of less than

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3,000 tons is not sand dune mining if the removal is a 1-time

17
occurrence and the reason the sand is removed is not for the

18
direct use for an industrial or commercial purpose. However, the

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removal of any volume of sand that is not sand dune mining within

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a critical dune area as defined in part 353 is subject to the

21
critical dune protection provisions of part 353. The department

22
may authorize in writing the removal of more than 3,000 tons of

23
sand without a sand dune mining permit issued pursuant to section

24
63704 for a purpose related to protecting an occupied dwelling or

25
other structure from property damage related to the migration of

26
sand or the instability of sand. This removal may be for more

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than 1 occurrence, but a written authorization from the

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department is required for each removal.

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(m) "Water table" means the surface in an unconfined aquifer

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at which the pressure is atmospheric. The water table is found

5
at the level at which water stands in wells that penetrate the

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aquifer.

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Sec. 63702. (1) Notwithstanding any other provision of

8
this part, the department shall not issue a sand dune mining

9
permit within a critical dune area as defined in part 353. after

10
July 5, 1989, except under either of the following

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circumstances:

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(a) The operator seeks to renew or amend a sand dune mining

13
permit that was issued prior to July 5, 1989, subject to the cri-

14
teria and standards applicable to a renewal or amendatory

15
application.

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(b) The operator holds a sand dune mining permit issued pur-

17
suant to section 63704 and is seeking to amend the mining permit

18
to include land that is adjacent to property the operator is per-

19
mitted to mine, and prior to July 5, 1989 the operator owned the

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land or owned rights to mine dune sand in the land for which the

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operator seeks an amended permit.

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(2) As used in this section, "adjacent" means land that is

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contiguous with the land for which the operator holds a sand dune

24
mining permit issued pursuant to section 63704, provided no land

25
or space, including a highway or road right-of-way, exists

26
between the property on which sand dune mining is authorized and

27
the adjacent land.

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Sec. 63704. (1) After July 1, 1977 UNTIL DECEMBER 31,

2
2005, a person or operator shall not engage in sand dune mining

3
within Great Lakes sand dune areas without first obtaining a

4
permit for that purpose from the department. ON AND AFTER

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JANUARY 1, 2006, A PERSON SHALL NOT ENGAGE IN SAND DUNE MINING

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WITHIN GREAT LAKES SAND DUNE AREAS.

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(2) Prior to receiving a permit from the department, a

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person or operator shall submit all of the following:

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(a) A permit application on a form provided by the

10
department.

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(b) An environmental impact statement of the proposed mining

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activity as prescribed by section 63705.

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(c) A progressive cell-unit mining and reclamation plan for

14
the proposed mining activity as prescribed by section 63706.

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(d) A 15-year mining plan as prescribed by section 63707.

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Sec. 63708. (1) A EXCEPT AS PROVIDED IN SUBSECTION (6), A

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sand dune mining permit issued by the department is valid for not

18
more than 5 years. A sand dune mining permit shall be renewed if

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the sand dune mining activities have been carried out in compli-

20
ance with this part, the rules promulgated under this part, and

21
the conditions of the sand dune mining permit issued by the

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department.

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(2) The sand dune mining permit shall state any conditions,

24
limitations, or other restrictions determined by the department,

25
including any setback from the ordinary high-water mark of a

26
Great Lake for the protection of the barrier dune.

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(3) In granting a sand dune mining permit, if the department

2
allows for the removal of all or a portion of the barrier dune

3
pursuant to this part, it shall submit to the commission written

4
reasons for permitting the removal.

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(4) The department shall approve or deny a sand dune mining

6
permit application in writing within 120 days after the applica-

7
tion is received and is determined by the department to be admin-

8
istratively complete. If a sand dune mining permit is denied,

9
the reasons shall be stated in a written report.

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(5) The department shall provide a list of all pending sand

11
dune mining applications upon a request from a person. The list

12
shall give the name and address of each applicant, the legal

13
description of the lands included in the project, and a summary

14
statement of the purpose of the application.

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(6) NOTWITHSTANDING ANY OTHER PROVISION OF THIS PART, A SAND

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DUNE MINING PERMIT EXPIRES IF SAND DUNE MINING HAS NOT OCCURRED

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DURING A 1-YEAR PERIOD. UPON EXPIRATION OF A SAND DUNE MINING

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PERMIT UNDER THIS SUBSECTION, THE LANDOWNER OR OPERATOR SHALL

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BEGIN RECLAMATION ACTIVITIES AS PROVIDED IN THIS PART.

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Sec. 63709. The department shall deny a sand dune mining

21
permit if, upon review of the environmental impact statement, it

22
determines that ANY OF THE FOLLOWING:

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(A) THAT the proposed sand dune mining activity is likely to

24
pollute, impair, or destroy the air, water, or other natural

25
resources or the public trust in those resources, as provided by

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part 17.

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(B) THAT THE PROPOSED SAND DUNE MINING ACTIVITY IS NOT

2
COMPATIBLE WITH ADJACENT EXISTING LAND USES.

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(C) THAT THE PROPOSED SAND DUNE MINING ACTIVITY WILL

4
ADVERSELY AFFECT ANY OF THE FOLLOWING:

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(i) FLORA, FAUNA, OR WILDLIFE HABITATS.

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(ii) GROUNDWATER SUPPLY, LEVEL, QUALITY, AND FLOW WITHIN

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1,000 FEET OF THE PROPOSED SAND DUNE MINING ACTIVITY.

8
(iii) ADJACENT SURFACE RESOURCES.

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(iv) AIR QUALITY WITHIN 1,000 FEET OF THE PROPOSED SAND DUNE

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MINING ACTIVITY.

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(D) THAT THE PROPOSED SAND DUNE MINING ACTIVITY WILL BE

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LOCATED WITHIN ANY OF THE FOLLOWING:

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(i) ONE THOUSAND FEET OF A RESIDENCE.

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(ii) TWO THOUSAND FEET OF A SCHOOL.

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(iii) FIVE HUNDRED FEET OF A COMMERCIAL DEVELOPMENT.

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Sec. 63711. (1) For purposes of surveillance, monitoring,

17
administration, and enforcement of this part, an operator is

18
assessed a fee of not more than 10 cents THE DEPARTMENT SHALL

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ASSESS EACH OPERATOR AN ADMINISTRATIVE FEE OF $5.00 per ton of

20
sand mined from a sand dune area for the calendar year reported

21
as described in subsection (2). Funds collected by the assess-

22
ment of the fee shall not exceed the actual costs to the depart-

23
ment of implementing the sections of this part that pertain to

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sand dune mining. Any fees collected under this subsection that

25
are unexpended at the end of a fiscal year shall be credited to a

26
separate fund of the department, carried over to the succeeding

27
fiscal year, and deducted from the amount appropriated for that

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year for surveillance, monitoring, administration, and

2
enforcement of this part for purposes of computing the fee to be

3
assessed for that year. ADMINISTRATIVE FEES COLLECTED UNDER THIS

4
SECTION SHALL BE FORWARDED TO THE STATE TREASURER FOR DEPOSIT

5
INTO THE SAND DUNE PROTECTION FUND CREATED IN SUBSECTION (8).

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(2) An operator shall file an annual report on or before

7
January 31 of each year. The report shall show the areas mined

8
and describe the progress of restoration and reclamation activi-

9 ties of the operator for the preceding calendar year. The report

10
shall contain both of the following:

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(a) The number of tons of sand mined from a sand dune area.

12
(b) Location THE LOCATION of the sand dune area.

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(3) The ADMINISTRATIVE fee described in ASSESSED UNDER

14
subsection (1) shall be IS due not more than 30 days after the

15
department sends written notice to the operator of the amount

16
due.

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(4) The surveillance ADMINISTRATIVE fee and annual report

18
required by this section is confidential and shall not be avail-

19
able for public inspection without the written consent of the

20
person filing the fee and report, except in accordance with judi-

21
cial order.

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(5) Failure to submit an annual report in compliance with

23
THIS SECTION AND ANY rules promulgated by the department consti-

24
tutes grounds for revocation of a permit.

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(6) A penalty equal to 10% of the amount due, or $1,000.00,

26
whichever is greater, shall be assessed against the operator for

27
a AN ADMINISTRATIVE fee that is not paid when due. An unpaid

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ADMINISTRATIVE fee and penalty shall constitute a debt and

2
become the basis of a judgment against the operator. Penalties

3
paid pursuant to RECOVERED UNDER this section shall be used

4
for the implementation, administration, and enforcement of this

5
part FORWARDED TO THE STATE TREASURER FOR DEPOSIT INTO THE SAND

6
DUNE PROTECTION FUND CREATED IN SUBSECTION (8).

7
(7) Records upon which the annual report is based shall be

8
preserved for 3 years and are subject to audit by the

9
department.

10
(8) THE SAND DUNE PROTECTION FUND IS CREATED WITHIN THE

11
STATE TREASURY. THE STATE TREASURER MAY RECEIVE MONEY OR OTHER

12
ASSETS FROM ANY SOURCE FOR DEPOSIT INTO THE SAND DUNE PROTECTION

13
FUND. THE STATE TREASURER SHALL DIRECT THE INVESTMENT OF THE

14
SAND DUNE PROTECTION FUND. THE STATE TREASURER SHALL CREDIT TO

15
THE SAND DUNE PROTECTION FUND INTEREST AND EARNINGS FROM SAND

16
DUNE PROTECTION FUND INVESTMENTS. MONEY IN THE SAND DUNE PROTEC-

17
TION FUND AT THE CLOSE OF THE FISCAL YEAR SHALL REMAIN IN THE

18
SAND DUNE PROTECTION FUND AND SHALL NOT LAPSE TO THE GENERAL

19
FUND. THE DEPARTMENT SHALL EXPEND MONEY FROM THE SAND DUNE PRO-

20
TECTION FUND, UPON APPROPRIATION, ONLY FOR 1 OR MORE OF THE FOL-

21
LOWING PURPOSES:

22
(A) NOT LESS THAN 20% FOR MORE SURVEILLANCE, MONITORING,

23
ADMINISTRATION, AND ENFORCEMENT OF THIS PART.

24
(B) NOT LESS THAN 80% FOR ACQUISITION OF LAND CONTAINING

25
CRITICAL DUNE AREAS. LAND ACQUIRED UNDER THIS SUBDIVISION SHALL

26
BE HELD IN PUBLIC OWNERSHIP FOR THE PROTECTION OF THE CRITICAL

27
DUNE AREAS.

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(9) (8) The department shall annually prepare and submit

2
to the house of representatives and senate standing committees

3
with jurisdiction over subject areas related to natural resources

4
and the environment a report on the sand mining surveillance

5
activities undertaken by the department for the immediately pre-

6
ceding year and the cost of those activities.

03829'99 Final page. JCB