2004-SJ-02-10-012.htm

No. 12

STATE OF MICHIGAN

Journal of the Senate

92nd Legislature

REGULAR SESSION OF 2004

Senate Chamber, Lansing, Tuesday, February 10, 2004.

10:00 a.m.

The Senate was called to order by the President pro tempore, Senator Patricia L. Birkholz.

The roll was called by the Secretary of the Senate, who announced that a quorum was not present.

Allen--present Emerson--present Olshove--present

Barcia--present Garcia--present Patterson--present

Basham--present George--present Prusi--present

Bernero--present Gilbert--present Sanborn--present

Birkholz--present Goschka--present Schauer--present

Bishop--present Hammerstrom--present Scott--present

Brater--present Hardiman--present Sikkema--present

Brown--present Jacobs--present Stamas--present

Cassis--present Jelinek--present Switalski--present

Cherry--present Johnson--present Thomas--present

Clark-Coleman--present Kuipers--present Toy--present

Clarke--present Leland--present Van Woerkom--present

Cropsey--present McManus--present

Senator Martha G. Scott of the 2nd District offered the following invocation:

Our Heavenly Father, I come to You this morning saying thank You. Thank You for all Your many blessings that You have bestowed upon us. I thank Thee for all who came before me, all of my ancestors who paved the way. I thank You for all their contributions that they gave to this country.

And, Father, I thank You for the opportunity to be able to serve in this wonderful Senate. I thank You for all my colleagues today. Lord, I thank You for giving us the opportunity to serve, especially to serve those people who cannot help themselves, and Father, we are in some terrible times now.

There are people who can't get health care. The hospitals are closing. Father, so many people are losing their jobs, and we have a long list of homeless. Father, we ask You to just intervene and touch those who have the authority to do something about it, Lord. Touch them and let them know that all people are Your people, and when you have done it unto the least of these, you've done it unto Thee.

So, Father, we just give You thanks and praise because we know that You're in the midst of us each and every day. So again we thank You for this day, and Lord we ask You to touch each and every one of the elected officials all over this country, Lord. O Heavenly Father, we just say thank You.

I thank Thee for my parents, Father, and I just say thank You. Thank You for the opportunity to pray this morning. Amen.

The President pro tempore, Senator Birkholz, led the members of the Senate in recital of the Pledge of Allegiance.

Recess

Senator Schauer moved that the Senate recess subject to the call of the Chair.

The motion prevailed, the time being 10:05 a.m.

10:11 a.m.

The Senate was called to order by the Assistant President pro tempore, Senator Sanborn.

During the recess, Senators McManus, Brown, Bishop, Gilbert, Van Woerkom, Patterson, Garcia, Stamas, Allen, George, Cassis, Kuipers, Sikkema, Goschka, Cropsey, Jelinek, Hardiman, Johnson, Toy and Hammerstrom entered the Senate Chamber.

A quorum of the Senate was present.

Motions and Communications

Senator Hammerstrom moved that the Committee on Government Operations be discharged from further consideration of the following bill:

House Bill No. 5179, entitled

A bill to amend 1954 PA 116, entitled "Michigan election law," by amending section 662 (MCL 168.662), as amended by 1999 PA 216.

The motion prevailed, a majority of the members serving voting therefor, and the bill was placed on the order of General Orders.

The following communication was received:

Office of the Great Lakes

January 26, 2004

Attached is a list of four research projects approved for funding under the Michigan Great Lakes Protection Fund (MGLPF) in compliance with Act 156 of the Public Acts of 1989. Section 10(1) of PA 156 requires that this list be submitted annually to the legislature.

The Office of the Great Lakes (OGL) did not release a request for new proposals in 2003 due to funding constraints. Executive Order 2002-22 supplanted $400,000 general fund from the OGL budget and substituted funding from the MGLPF for OGL administrative costs. In addition, there has not been a revenue allocation from the Regional Great Lakes Protection Fund in the past two years. Therefore, the MGLPF is only providing funding to four ongoing projects. These projects were previously recommended by the MGLPF Technical Advisory Board after extensive review. Funding for the projects was approved under the Department of Environmental Quality's (DEQ) FY 2004 appropriations. A list of guidelines used in listing and assigning priority of the proposed grants is also attached.

If you have any questions, please contact Ms. Emily Finnell of my staff at 517-241-7927, or you may contact me.

Sincerely,

Ken DeBeaussaert

Director

517-335-4056

The communication was referred to the Secretary for record.

The following communication was received:

Department of State

Administrative Rules

Notice of Filing

February 2, 2004

In accordance with the provisions of Section 46(1) of Act 306, Public Acts of 1969, as amended, and Executive Order 1995-6 this is to advise you that the Office of Regulatory Reform, Legal Division filed at 1:03 p.m. this date, administrative rule (04-02-01) for the Department of Labor and Economic Growth, Public Service Commission, entitled "Electric Distribution Service Standards," effective 7 days after filing with the Secretary of State.

Sincerely,

Terri Lynn Land

Secretary of State

Elena L. Beasley, Manager

Office of the Great Seal

The communication was referred to the Secretary for record.

The following communication was received:

Office of the Auditor General

February 4, 2004

Enclosed is a copy of the following audit report:

Performance audit of the Bureau of Local Government Services, Department of Treasury.

Sincerely,

Thomas H. McTavish, C.P.A.

Auditor General

The communication was referred to the Secretary for record.

The Secretary announced that the following House bills were received in the Senate and filed on Thursday, February 5:

House Bill Nos. 4098 4099 4969 5238

The Secretary announced that the following official bills and joint resolution were printed on Thursday, February 5, and are available at the legislative Web site:

Senate Bill Nos. 941 950 951 952 953 954 955 956 957 958

Senate Joint Resolution G

House Bill Nos. 5447 5448 5449 5450 5451 5452 5453 5454 5455 5456 5457 5458 5476

The Secretary announced that the following official bills and joint resolution were printed on Friday, February 6, and are available at the legislative Web site:

Senate Bill Nos. 959 960 961 963 964 965 966 967

House Bill Nos. 5459 5460 5461 5462 5463 5464 5465 5466 5467 5468 5469 5470 5471 5472

5473 5474 5475 5477 5478 5479 5480 5481 5482 5483 5484 5485 5486 5487

5488 5489 5490 5491 5492

House Joint Resolution V

By unanimous consent the Senate proceeded to the order of

Conference Reports

Senator McManus submitted the following:

FIRST CONFERENCE REPORT

The Committee of Conference on the matters of difference between the two Houses concerning

Senate Bill No. 252, entitled

A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending sections 3111 and 3113 (MCL 324.3111 and 324.3113) and by adding sections 3120 and 3121.

Recommends:

First: That the Senate and House agree to the Substitute of the House as passed by the House, amended to read as follows:

A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending sections 3103, 3112, 3113, 3115, 3118, and 3119 (MCL 324.3103, 324.3112, 324.3113, 324.3115, 324.3118, and 324.3119), section 3118 as amended by 1999 PA 35 and section 3119 as amended by 1999 PA 106, and by adding sections 3120 and 3121.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 3103. (1) The department shall protect and conserve the water resources of the state and shall have control of the pollution of surface or underground waters of the state and the Great Lakes, which are or may be affected by waste disposal of any person. The department may make or cause to be made surveys, studies, and investigations of the uses of waters of the state, both surface and underground, and cooperate with other governments and governmental units and agencies in making the surveys, studies, and investigations. The department shall assist in an advisory capacity a flood control district that may be authorized by the legislature. The department, in the public interest, shall appear and present evidence, reports, and other testimony during the hearings involving the creation and organization of flood control districts. The department shall advise and consult with the legislature on the obligation of the state to participate in the costs of construction and maintenance as provided for in the official plans of a flood control district or intercounty drainage district.

(2) The department shall enforce this part and shall promulgate rules as it considers necessary to carry out its duties under this part. However, notwithstanding any rule-promulgation authority that is provided in this part, beginning on the effective date of the amendatory act that amended this section, the department shall not promulgate any additional rules unless specific rule-making authority is authorized by law.

(3) ~~(2) The~~ Subject to subsection (2), the department may promulgate rules and take other actions as may be necessary to comply with the federal water pollution control act, chapter 758, 86 Stat. 816, 33 U.S.C. 1251 to 1252, 1253 to 1254, 1255 to 1257, 1258 to 1270, 1281, 1282 to 1293, 1294 to 1299, 1311 to 1313, 1314 to 1330, 1341 to 1345, 1361 to 1377, and 1381 to 1387, and to expend funds available under such law for extension or improvement of the state or interstate program for prevention and control of water pollution. This part shall not be construed as authorizing the department to expend or to incur any obligation to expend any state funds for such purpose in excess of any amount that is appropriated by the legislature.

Sec. 3112. (1) A person shall not discharge any waste or waste effluent into the waters of this state unless the person is in possession of a valid permit from the department. Compliance with the terms of an outstanding order of determination or final order of determination or stipulation with the former water resources commission that is in effect on April 15, 1973, shall be considered to meet the requirements of this section until the department issues its permit.

(2) An application for a permit under subsection (1) shall be submitted to the department. Within 30 days after an application for a new or increased use is received, the department shall determine whether the application is administratively complete. Within 90 days after an application for reissuance of a permit is received, the department shall determine whether the application is administratively complete. If the department determines that an application is not complete, the department shall notify the applicant in writing within the applicable time period. If the department does not make a determination as to whether the application is complete within the applicable time period, the application shall be considered to be complete.

(3) The department shall condition the continued validity of a permit upon the permittee's meeting the effluent requirements that the department considers necessary to prevent unlawful pollution by the dates that the department considers to be reasonable and necessary and to assure compliance with applicable federal law and regulations. If the department finds that the terms of a permit have been, are being, or may be violated, it may modify, suspend, or revoke the permit or grant the permittee a reasonable period of time in which to comply with the permit. The department may reissue a revoked permit upon a showing satisfactory to the department that the permittee has corrected the violation. A person who has had a permit revoked may apply for a new permit.

(4) ~~(2)~~ If the department determines that a person is causing or is about to cause unlawful pollution of the waters of this state, the department may notify the alleged offender of its determination and enter an order requiring the person to abate the pollution or refer the matter to the attorney general for legal action, or both.

(5) ~~(3)~~ A person who is aggrieved by an order of abatement of the department or by the reissuance, modification, suspension, or revocation of an existing permit of the department executed pursuant to this section may file a sworn petition with the ~~commission~~ 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, ~~Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws~~ 1969 PA 306, MCL 24.201 to 24.328. A petition filed more than 60 days after action on the order or permit may be rejected by the ~~commission~~ department as being untimely.

Sec. 3113. (1) A person who seeks a new or increased use of the waters of the state for sewage or other waste disposal purposes shall file with the department an application setting forth the information required by the department, including the nature of the enterprise or development contemplated, the amount of water required to be used, its source, the proposed point of discharge of the wastes into the waters of the state, the estimated amount to be discharged, and a statement setting forth the expected bacterial, physical, chemical, and other known characteristics of the wastes.

(2) ~~Within 180 days after receipt of a complete application, the department shall either grant or deny a permit, unless the applicant and the department agree to extend this time period.~~ If a permit is granted, the department shall condition the permit upon such restrictions that the department considers necessary to adequately guard against unlawful uses of the waters of the state as are set forth in section 3109.

(3) If the permit or denial of a new or increased use is not acceptable to the permittee, the applicant, or any other person, the permittee, the applicant, or other person 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, ~~Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws~~ 1969 PA 306, MCL 24.201 to 24.328. A petition filed more than 60 days after action on the permit application may be rejected by the ~~commission~~ department as being untimely.

Sec. 3115. (1) The department may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation of this part or a provision of a permit, order, rule, or stipulation of the department. An action under this subsection may be brought in the circuit court for the county of Ingham or for the county in which the defendant is located, resides, or is doing business. If requested by the defendant within 21 days after service of process, the court shall grant a change of venue to the circuit court for the county of Ingham or for the county in which the alleged violation occurred, is occurring, or, in the event of a threat of violation, will occur. The court has jurisdiction to restrain the violation and to require compliance. In addition to any other relief granted under this subsection, the court shall impose a civil fine of not less than $2,500.00 and may award reasonable attorney fees and costs to the prevailing party. However, the maximum fine imposed by the court shall be not more than $25,000.00 per day of violation.

(2) A person who at the time of the violation knew or should have known that he or she discharged a substance contrary to this part, or contrary to a permit, order, rule, or stipulation of the department, or who intentionally makes a false statement, representation, or certification in an application for or form pertaining to a permit or in a notice or report required by the terms and conditions of an issued permit, or who intentionally renders inaccurate a monitoring device or record required to be maintained by the department, is guilty of a felony and shall be fined not less than $2,500.00 or more than $25,000.00 for each violation. The court may impose an additional fine of not more than $25,000.00 for each day during which the unlawful discharge occurred. If the conviction is for a violation committed after a first conviction of the person under this subsection, the court shall impose a fine of not less than $25,000.00 per day and not more than $50,000.00 per day of violation. Upon conviction, in addition to a fine, the court in its discretion may sentence the defendant to imprisonment for not more than 2 years or impose probation upon a person for a violation of this part. With the exception of the issuance of criminal complaints, issuance of warrants, and the holding of an arraignment, the circuit court for the county in which the violation occurred has exclusive jurisdiction. However, the person shall not be subject to the penalties of this subsection if the discharge of the effluent is in conformance with and obedient to a rule, order, or permit of the department. In addition to a fine, the attorney general may file a civil suit in a court of competent jurisdiction to recover the full value of the injuries done to the natural resources of the state and the costs of surveillance and enforcement by the state resulting from the violation.

(3) Upon a finding by the court that the actions of a civil defendant pose or posed a substantial endangerment to the public health, safety, or welfare, the court shall impose, in addition to the penalties set forth in subsection (1), a fine of not less than $500,000.00 and not more than $5,000,000.00.

(4) Upon a finding by the court that the actions of a criminal defendant pose or posed a substantial endangerment to the public health, safety, or welfare, the court shall impose, in addition to the penalties set forth in subsection (2), a fine of not less than $1,000,000.00 and, in addition to a fine, a sentence of 5 years' imprisonment.

(5) To find a defendant civilly or criminally liable for substantial endangerment under subsections (3) and (4), the court shall determine that the defendant knowingly or recklessly acted in such a manner as to cause a danger of death or serious bodily injury and that either of the following occurred:

(a) The defendant had an actual awareness, belief, or understanding that his or her conduct would cause a substantial danger of death or serious bodily injury.

(b) The defendant acted in gross disregard of the standard of care that any reasonable person should observe in similar circumstances.

(6) Knowledge possessed by a person other than the defendant under subsection (5) may be attributable to the defendant if the defendant took affirmative steps to shield himself or herself from the relevant information.

(7) ~~Any~~ A civil fine or other award ordered paid pursuant to this section shall do both of the following:

(a) Be payable to the state of Michigan and credited to the general fund.

(b) Constitute a lien on any property, of any nature or kind, owned by the defendant.

(8) A lien under subsection (7)(b) shall take effect and have priority over all other liens and encumbrances except those filed or recorded prior to the date of judgment only if notice of the lien is filed or recorded as required by state or federal law.

(9) A lien filed or recorded pursuant to subsection (8) shall be terminated according to the procedures required by state or federal law within 14 days after the fine or other award ordered to be paid is paid.

(10) In addition to any other method of collection, any fine or other award ordered paid may be recovered by right of setoff to any debt owed to the defendant by the state of Michigan, including the right to a refund of income taxes paid.

Sec. 3118. (1) Until October 1, ~~2003~~ 2009, the department shall collect storm water discharge fees from persons who apply for or have been issued storm water discharge permits as follows:

(a) ~~The~~ A 1-time fee of $400.00 is required for a permit related solely to a site of construction activity ~~is a 1-time fee of $125.00 per~~ for each permitted site. The fee shall be submitted by the permit applicant with his or her application for ~~a general or~~ an individual permit or for a certificate of coverage under a general permit. ~~If rules promulgated under this part provide for~~ For a permit by rule, the fee shall be submitted by the construction site permittee along with his or her notice of coverage. A person needing more than 1 permit may submit a single payment for more than 1 permit and receive appropriate credit. Payment of the fee under this subdivision or verification of prepayment is a necessary part of a valid permit application or notice of coverage under a permit by rule.

(b) The fee for a permit not related solely to a site of construction activity is $200.00. For each fiscal year, a person possessing a permit not related solely to a site of construction activity as of January 1 of that fiscal year shall be assessed the fee. The department shall notify those persons of their fee assessments by February 1 of that fiscal year. Payment shall be postmarked no later than March 15 of that fiscal year. An annual fee of $260.00 is required for a permit related solely to a storm water discharge associated with industrial activity or from a commercial site for which the department determines a permit is needed.

(c) An annual fee of $500.00 is required for a permit for a municipal separate storm sewer system, unless the permit is issued to a city, a village, a township, or a county or is a single permit authorization for municipal separate storm sewer systems in multiple locations statewide.

(d) An annual fee for a permit for a municipal separate storm sewer system issued to a city, village, or township shall be determined by its population in an urbanized area as defined by the United States bureau of the census. The fee shall be based on the latest available decennial census as follows:

(i) For a population of 1,000 people or fewer, the annual fee is $500.00.

(ii) For a population of more than 1,000 people, but fewer than 3,001 people, the annual fee is $1,000.00.

(iii) For a population of more than 3,000 people, but fewer than 10,001 people, the annual fee is $2,000.00.

(iv) For a population of more than 10,000 people, but fewer than 30,001 people, the annual fee is $3,000.00.

(v) For a population of more than 30,000 people, but fewer than 50,001 people, the annual fee is $4,000.00.

(vi) For a population of more than 50,000 people, but fewer than 75,001 people, the annual fee is $5,000.00.

(vii) For a population of more than 75,000 people, but fewer than 100,001 people, the annual fee is $6,000.00.

(viii) For a population of more than 100,000 people, the annual fee is $7,000.00.

(e) An annual fee of $3,000.00 is required for a permit for a municipal separate storm sewer system issued to a county.

(f) An annual fee for a single municipal separate storm sewer systems permit authorizing a state or federal agency to operate municipal separate storm sewer systems in multiple locations statewide shall be determined in accordance with a memorandum of understanding between that state or federal agency and the department and shall be based on the projected needs by the department to administer the permit.

(2) The permit fees identified in subsection (1) are nonrefundable.

(3) A person possessing a permit not related solely to a site of construction activity as of January 1 shall be assessed a fee. The department shall notify those persons of their fee assessments by February 1. Payment shall be postmarked no later than March 15. Failure by the department to send a fee assessment notification by the deadline, or failure of a person to receive a fee assessment notification, does not relieve that person of his or her obligation to pay the fee. If the department does not meet the February deadline for sending the fee assessment, the fee assessment is due not later than 45 days after receiving a fee notification.

(4) If a storm water permit is issued for a drainage district, the drainage district is responsible for the applicable fee under this section.

(5) ~~(2)~~ The department shall assess interest on all fee payments submitted under this section after the due date. The permittee shall pay an additional amount equal to 0.75% of the payment due for each month or portion of a month the payment remains past due.

(6) ~~(3)~~ The department shall forward all fees and interest payments collected under this section to the state treasurer for deposit into the fund.

(7) ~~(4)~~ The department shall make payment of the required fee assessed under this section a condition of issuance or reissuance of a permit not related solely to a site of construction activity. ~~at the time of permit issuance or reissuance.~~

(5) If a person fails to pay the fee required under this section in full, plus any interest accrued, by October 1 of the year following the date of notification of the fee assessment, the department may revoke the permit held by that person. The failure by a person to pay a fee imposed by this section is a violation of this part and subjects that person to the penalty provisions in section 3115.

(6) Within 1 year after the reauthorization of the clean water act, the department shall convene a committee to review the storm water discharge fee system provided in this section. The committee shall be composed of a member of the department and representatives of groups affected by the storm water discharge fee. The committee shall make recommendations for changes in the fee system to the department and to the chairpersons of the house and senate appropriations committees.

(8) In addition to any other penalty provided in this part, if a person fails to pay the fee required under this section by its due date, the person is in violation of this part and the department may undertake enforcement actions as authorized under this part.

(9) The attorney general may bring an action to collect overdue fees and interest payments imposed under this section.

(10) If the permit is for a municipal separate storm sewer system and the population served by that system is different than the latest decennial census, the permittee may appeal the annual fee determination and submit written verification of actual population served by the municipal separate storm sewer system.

(11) A person who wishes to appeal either a fee or a penalty assessed under this section is limited to an administrative appeal, in accordance with section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631. The appeal shall be filed within 30 days of the department's fee notification under subsection (3).

(12) ~~(7)~~ As used in this section and section 3119:

(a) "Certificate of coverage" means a document issued by the department that authorizes a discharge under a general permit.

(b) ~~(a)~~ "Clean water act" means the federal water pollution control act, chapter 758, 86 Stat. 816, 33 U.S.C. 1251 to 1252, 1253 to 1254, 1255 to 1257, 1258 to 1263, 1265 to 1270, 1273 to 1274, 1281, 1282 to 1293, 1294 to ~~1299~~ 1301, 1311 to 1313, 1314 to 1330, 1341 to ~~1345~~ 1346, 1361 to 1375, 1376 to 1377, and 1381 to 1387.

(c) ~~(b)~~ "Construction activity" means a human-made earth change or disturbance in the existing cover or topography of land that is 5 acres or more in size, for which a national permit is required pursuant to 40 C.F.R. 122.26(a), and which is described as a construction activity in 40 C.F.R. 122.26(b)(14)(x). Construction activity includes clearing, grading, and excavating activities. Construction activity does not include the practice of clearing, plowing, tilling soil, and harvesting for the purpose of crop production.

(d) ~~(c)~~ "Fee" means a storm water discharge fee authorized under this section.

~~(d) "Fiscal year" means the state fiscal year beginning October 1 and ending September 30.~~

(e) "Fund" means the storm water fund created in section 3119.

(f) "General permit" means a permit issued authorizing a category of similar discharges.

(g) "Individual permit" means a site-specific permit.

(h) "Municipal separate storm sewer system" means all separate storm sewers that are owned or operated by the United States or a state, city, village, township, county, district, association, or other public body created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under state law, such as a sewer district, flood control district, or drainage district or similar entity, or a designated or approved management agency under section 208 of the clean water act, 33 U.S.C. 1288, that discharges to waters of the state. Municipal separate storm sewer system includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. Municipal separate storm sewer system does not include separate storm sewers in very discrete areas, such as individual buildings.

(i) "Notice of coverage" means a notice that a person engaging in construction activity agrees to comply with a permit by rule for that activity.

(j) ~~(f)~~ "Permit" or "storm water discharge permit" means a permit authorizing the discharge of wastewater or any other substance to surface waters of the state under the national pollutant discharge elimination system, pursuant to the clean water act or this part and the rules and regulations promulgated under that act or this part.

(k) "Public body" means the United States, the state of Michigan, a city, village, township, county, school district, public college or university, or single purpose governmental agency, or any other body which is created by federal or state statute or law.

(l) "Separate storm sewer system" means a system of drainage, including, but not limited to, roads, catch basins, curbs, gutters, parking lots, ditches, conduits, pumping devices, or man-made channels, which has the following characteristics:

(i) The system is not a combined sewer where storm water mixes with sanitary wastes.

(ii) The system is not part of a publicly owned treatment works.

(m) ~~(g)~~ "Storm water" means storm water runoff, snowmelt runoff, and surface runoff and drainage.

(n) "Storm water discharge associated with industrial activity" means a point source discharge of storm water from a facility which is defined as an industrial activity under 40 C.F.R. 122.26(b)(14)(i-ix and xi).

Sec. 3119. (1) The storm water 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.

(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 for 1 or more of the following purposes:

(a) Review of storm water permit applications.

(b) Storm water permit development, issuance, reissuance, modification, and termination.

(d) Assessment of compliance with storm water permit conditions.

(e) Enforcement against storm water permit violations.

(f) Classification of storm water control facilities.

(g) Not more than 10% of the money in the fund for training for certification of storm water operators and educational material to assist persons regulated under this part.

(h) Regional or statewide public education to enhance the effectiveness of storm water permits.

(5) Money in the fund shall not be used to support the direct costs of litigation undertaken to enforce this part.

(6) Upon the expenditure or appropriation of money raised in section 3118 for any other purpose than those specifically listed in this section, authorization to collect fees under section 3118 shall be suspended until such time as the money expended or appropriated for purposes other than those listed in this section is returned to the fund.

(7) By January 1, 2006 and by January 1 of each year thereafter, the department shall prepare and submit to the governor, the legislature, the chairs of the standing committees of the senate and house of representatives with primary responsibility for issues related to natural resources and the environment, and the chairs of the subcommittees of the senate and house appropriations committees with primary responsibility for appropriations to the department a report that details the departmental activities of the previous fiscal year in administering the department's storm water program that were funded by the fund. This report shall include, at a minimum, all of the following:

(a) The number of full-time equated positions performing each of the following functions:

(i) Permit issuance and development.

(ii) Compliance.

(iii) Enforcement.

(b) The number of new permit applications received by the department in the preceding year.

(c) The number of renewal permits in the preceding year.

(d) The number of permit modifications requested in the preceding year.

(e) The number of staff hours dedicated to each of the fee categories listed in section 3118.

(f) The number of permits issued for fee categories listed in section 3118.

(g) The average number of days required for review of a permit from the date the permit application is determined to be administratively complete.

(h) The number of permit applications denied.

(i) The number of permit applications withdrawn by the applicant.

(j) The percentage and number of permit applications that were reviewed for administrative completeness within 10 days of receipt by the department.

(k) The percentage and number of permit applications submitted to the department that were administratively complete as received.

(l) The percentage and number of new permit applications for which a final action was taken by the department within 180 days.

(m) The percentage and number of permit renewals and modifications processed within the required time.

(n) The number of permits reopened by the department.

(o) The number of unfilled positions dedicated to the department's storm water program.

(p) The amount of revenue in the fund at the end of the fiscal year.

Sec. 3120. (1) Until October 1, 2009, an application for a new permit, a reissuance of a permit, or a modification of an existing permit under this part authorizing a discharge into surface water, other than a storm water discharge, shall be accompanied by an application fee as follows:

(a) For an EPA major facility permit, $750.00.

(b) For an EPA minor facility individual permit, a CSO permit, or a wastewater stabilization lagoon individual permit, $400.00.

(c) For an EPA minor facility general permit, $75.00.

(2) Within 180 days after receipt of a complete application for a new or increased use permit, the department shall either grant or deny the permit, unless the applicant and the department agree to extend this time period.

(3) By September 30 of the year following the submittal of a complete application for reissuance of a permit, the department shall either grant or deny the permit, unless the applicant and the department agree to extend this time period.

(4) If the department fails to make a decision on an application within the applicable time period under subsection (2) or (3), the department shall return to the applicant the application fee submitted under subsection (1) and the applicant shall not be subject to an application fee and shall receive a 15% annual discount on an annual permit fee required for a permit issued based upon that application.

(5) Until October 1, 2009, a person who receives a permit under this part authorizing a discharge into surface water, other than a stormwater discharge, is subject to an annual permit fee as follows:

(a) For an industrial or commercial facility that is an EPA major facility, $8,700.00.

(b) For an industrial or commercial facility that is an EPA minor facility, the following amounts:

(i) For a general permit for a low-flow facility, $150.00.

(ii) For a general permit for a high-flow facility, $400.00.

(iii) For an individual permit for a low-flow facility, $1,650.00.

(iv) For an individual permit for a high-flow facility, $3,650.00.

(c) For a municipal facility that is an EPA major facility, the following amounts:

(i) For an individual permit for a facility discharging 500 MGD or more, $213,000.00.

(ii) For an individual permit for a facility discharging 50 MGD or more but less than 500 MGD, $20,000.00.

(iii) For an individual permit for a facility discharging 10 MGD or more but less than 50 MGD, $13,000.00.

(iv) For an individual permit for a facility discharging less than 10 MGD, $5,500.00.

(d) For a municipal facility that is an EPA minor facility, the following amounts:

(i) For an individual permit for a facility discharging 10 MGD or more, $3,775.00.

(ii) For an individual permit for a facility discharging 1 MGD or more but less than 10 MGD, $3,000.00.

(iii) For an individual permit for a facility discharging less than 1 MGD, $1,950.00.

(iv) For a general permit for a high-flow facility, $600.00.

(v) For a general permit for a low-flow facility, $400.00.

(e) For a municipal facility that is a CSO facility, $6,000.00.

(f) For an individual permit for a wastewater stabilization lagoon, $1,525.00.

(g) For an individual or general permit for an agricultural purpose, $600.00, unless either of the following applies:

(i) The facility is an EPA minor facility and would qualify for a general permit for a low-flow facility, in which case the fee would be $150.00.

(ii) The facility is an EPA major facility that is not a farmers' cooperative corporation, in which case the fee would be $8,700.00.

(h) For a facility that holds a permit issued under this part but has no discharge and the facility is connected to and is authorized to discharge only to a municipal wastewater treatment system, an annual permit maintenance fee of $100.00. However, if a facility does have a discharge or at some point is no longer connected to a municipal wastewater treatment system, the annual permit fee shall be the appropriate fee as otherwise provided in this subsection.

(6) If the person required to pay an application fee under subsection (1) or an annual permit fee under subsection (5) is a municipality, the municipality may pass on the application fee or the annual permit fee, or both, to each user of the municipal facility.

(7) The department shall send invoices for annual permit fees under subsection (5) to all permit holders by December 1 of each year. The fee shall be based on the status of the facility as of October 1 of that year. A person subject to an annual permit fee shall pay the fee not later than January 15 of each year. Failure by the department to send an invoice by the deadline, or failure of a person to receive an invoice, does not relieve that person of his or her obligation to pay the annual permit fee. If the department does not meet the December 1 deadline for sending invoices, the annual permit fee is due not later than 45 days after receiving an invoice. The department shall forward annual permit fees received under this section to the state treasurer for deposit into the national pollutant discharge elimination system fund created in section 3121.

(8) The department shall assess a penalty on all annual permit fee payments submitted under this section after the due date. The penalty shall be an amount equal to 0.75% of the payment due for each month or portion of a month the payment remains past due.

(9) Following payment of an annual permit fee, if a permittee wishes to challenge its annual permit fee under this section, the owner or operator shall submit the challenge in writing to the department. The department shall not process the challenge unless it is received by the department by March 1 of the year the payment is due. A challenge shall identify the facility and state the grounds upon which the challenge is based. Within 30 calendar days after receipt of the challenge, the department shall determine the validity of the challenge and provide the permittee with notification of a revised annual permit fee and a refund, if appropriate, or a statement setting forth the reason or reasons why the annual permit fee was not revised. If the owner or operator of a facility desires to further challenge its annual permit fee, the owner or operator of the facility has an opportunity for a contested case hearing as provided for under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(10) The attorney general may bring an action for the collection of the annual permit fee imposed under this section.

(11) Within 30 days after the effective date of the amendatory act that added this section, the director of the department shall notify each person holding a permit under this part authorizing a discharge into surface water, other than a storm water permit, of the requirements of this section.

(12) As used in this section:

(a) "Agricultural purpose" means the agricultural production or processing of those plants and animals useful to human beings produced by agriculture 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, that incorporates the use of food, feed, fiber, or fur. Agricultural purpose includes an operation or facility that produces wine.

(b) "Combined sewer overflow" means a discharge from a combined sewer system that occurs when the flow capacity of the combined sewer system is exceeded at a point prior to the headworks of a publicly owned treatment works during wet weather conditions.

(c) "Combined sewer system" means a sewer designed and used to convey both storm water runoff and sanitary sewage, and which contains lawfully installed regulators and control devices that allow for delivery of sanitary flow to treatment during dry weather periods and divert storm water and sanitary sewage to surface waters during storm flow periods.

(d) "CSO facility" means a facility whose discharge is solely a combined sewer overflow.

(e) "EPA major facility" means a facility that is designated by the United States environmental protection agency as being a major facility under 40 C.F.R. 122.2.

(f) "EPA minor facility" means a facility that is not an EPA major facility.

(g) "Farmers' cooperative corporation" means a farmers' cooperative corporation organized within the limitations of section 98 of 1931 PA 327, MCL 450.98.

(h) "General permit" means a permit suitable for use at facilities meeting eligibility criteria as specified in the permit. With a general permit, the discharge from a specific facility is acknowledged through a certificate of coverage issued to the facility.

(i) "High-flow facility" means a facility that discharges 1 MGD or more.

(j) "Individual permit" means a permit developed for a particular facility, taking into account that facility's specific characteristics.

(k) "Industrial or commercial facility" means a facility that is not a municipal facility.

(l) "Low-flow facility" means a facility that discharges less than 1 MGD.

(m) "MGD" means 1,000,000 gallons per day.

(n) "Municipal facility" means a facility that is designed to collect or treat sanitary wastewater, and is either publicly or privately owned, and serves a residential area or a group of municipalities.

(o) "Wastewater stabilization lagoon" means a type of treatment system constructed of ponds or basins designed to receive, hold, and treat sanitary wastewater for a predetermined amount of time. Wastewater is treated through a combination of physical, biological, and chemical processes.

Sec. 3121. (1) The national pollutant discharge elimination system fund is created within the state treasury.

(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 administer the national pollutant discharge elimination system program under this part including, but not limited to, all of the following:

(a) Water quality standards development and maintenance.

(b) Permit development and issuance.

(c) Maintenance of program data.

(d) Ambient water quality monitoring conducted to determine permit conditions and evaluate the effectiveness of permit requirements.

(e) Activities conducted to determine a discharger's permit compliance status, including, but not limited to, inspections, discharge monitoring, and review of submittals.

(f) Laboratory services.

(g) Enforcement.

(h) Program administration activities.

(5) By January 1, 2006 and by January 1 of each year thereafter, the department shall prepare and submit to the governor, the legislature, the chairs of the standing committees of the senate and house of representatives with primary responsibility for issues related to natural resources and the environment, and the chairs of the subcommittees of the senate and house appropriations committees with primary responsibility for appropriations to the department a report that details the departmental activities of the previous fiscal year in administering the department's national pollutant discharge elimination system program that were funded by the fund. This report shall include, at a minimum, all of the following as it relates to the department:

(a) The number of full-time equated positions performing each of the following functions:

(i) Permit issuance and development.

(ii) Compliance.

(iii) Enforcement.

(b) The number of permit applications received by the department in the preceding year, including applications for new and increased uses and reissuances.

(c) The number of staff hours dedicated to each of the fee categories listed in section 3120.

(d) The number of permits issued for fee categories listed in section 3120.

(e) The number of permit applications denied.

(f) The number of permit applications withdrawn by the applicant.

(g) The percentage and number of permit applications that were reviewed for administrative completeness within statutory time frames.

(h) The percentage and number of permit applications submitted to the department that were administratively complete as received.

(i) The percentage and number of permit applications for which a final action was taken by the department within statutory time frames for new and increased uses and reissuances.

(j) The number of permits reopened by the department.

(k) The number of unfilled positions dedicated to the national pollutant discharge elimination system program.

(l) The amount of revenue in the fund at the end of the fiscal year.

(6) As used in this section:

(a) "Fund" means the national pollutant discharge elimination system fund created in subsection (1).

(b) "National pollutant discharge elimination system program" means the national pollutant discharge elimination system program delegated to the department under section 402 of title IV of the federal water pollution control act, chapter 758, 86 Stat. 880, 33 U.S.C. 1342, and implemented under this part.

Second: That the Senate and House agree to the title of the bill to read as follows:

A bill to amend 1994 PA 451, entitled "An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, and assessments; to provide certain appropriations; to prescribe penalties and provide remedies; to repeal certain parts of this act on a specific date; and to repeal certain acts and parts of acts," by amending sections 3103, 3112, 3113, 3115, 3118, and 3119 (MCL 324.3103, 324.3112, 324.3113, 324.3115, 324.3118, and 324.3119), section 3118 as amended by 1999 PA 35 and section 3119 as amended by 1999 PA 106, and by adding sections 3120 and 3121; and to repeal acts and parts of acts.

Michelle McManus

Patricia L. Birkholz

Conferees for the Senate

James Koetje

Jim Howell

Conferees for the House

Pending the order that, under joint rule 9, the conference report be laid over one day,

Senator Hammerstrom moved that the rule be suspended.

The motion prevailed, a majority of the members serving voting therefor.

The question being on the adoption of the conference report,

The first conference report was adopted, a majority of the members serving voting therefor, as follows:

Roll Call No. 27 Yeas--21

Allen Garcia Hardiman Patterson

Birkholz George Jelinek Sikkema

Bishop Gilbert Johnson Stamas

Brown Goschka Kuipers Toy

Cassis Hammerstrom McManus Van Woerkom

Cropsey

Nays--17

Barcia Clark-Coleman Leland Schauer

Basham Clarke Olshove Scott

Bernero Emerson Prusi Switalski

Brater Jacobs Sanborn Thomas

Cherry

Excused--0

Not Voting--0

In The Chair: Sanborn

The question being on concurring in the committee recommendation to give the bill immediate effect,

The recommendation was not concurred in, 2/3 of the members serving not voting therefor.

Senator Sikkema requested the yeas and nays.

The yeas and nays were ordered, 1/5 of the members present voting therefor.

The recommendation was concurred in, 2/3 of the members serving voting therefor, as follows:

Roll Call No. 28 Yeas--30

Allen Cassis Hammerstrom Sanborn

Barcia Cherry Hardiman Schauer

Basham Cropsey Jelinek Sikkema

Bernero Emerson Johnson Stamas

Birkholz Garcia Kuipers Switalski

Bishop George McManus Toy

Brater Gilbert Patterson Van Woerkom

Brown Goschka

Nays--8

Clark-Coleman Jacobs Olshove Scott

Clarke Leland Prusi Thomas

Excused--0

Not Voting--0

In The Chair: Sanborn

Protest

Senator Scott, under her constitutional right of protest (Art. 4, Sec. 18), protested against the adoption of the first conference report on Senate Bill No. 252 and moved that the statement she made during the discussion of the conference report be printed as her reasons for voting "no."

The motion prevailed.

Senator Scott's statement is as follows:

I rise to echo the comments made by my colleague, Liz Brater, the bill's original sponsor. It is wrong to pass this conference report that breaks the budget deal that both Democrats and Republicans agreed to last year.

But I rise for another reason as well. As a Senator who represents Detroit, I cannot sit quietly by while Republicans once again try to put the burden on my city. When this bill was first passed by the Senate back in June, it passed with the support of every Democrat in this chamber. Since that day, the cost for Detroit included in this bill has risen nearly 400 percent, from $66,000 to $213,000. Let me say that again, under the new version of this bill, Detroit will pay almost four times more than called for in the original agreement. At the same time, some communities will pay less in the Republican's new version, and you can guess who represents those communities.

This bill violates the agreement made between the administration and the Legislature, and it puts an unjustifiable burden on the city of Detroit. For those reasons, I urge my colleagues to vote "no" on this conference report.

Senators Sikkema, Birkholz, McManus, Cropsey and Brater asked and were granted unanimous consent to make statements and moved that the statements be printed in the Journal.

The motion prevailed.

Senator Sikkema's first statement is as follows:

I am compelled to rise to respond to what can only be characterized as outlandish statements about this conference report. Anybody who says that this breaks the budget agreement we have with the administration is absolutely false. I could use stronger language than that, and I choose not to on the Senate floor. I was at those meetings. I was a participant in the agreement, and this does not break the agreement. It fulfills the agreement to raise $3 million in fees of the new NPDES system. Fact--and you know Ronald Reagan use to say it--facts are stubborn things. It's a fact, and anybody who says otherwise is wrong.

It's also not true that this initiative actually came from the Governor. As was pointed out earlier, it's kind of a minor point, but the Great Lakes Conservation Task Force report of, I think, it was three years ago pointed out that Michigan is unique among the states in that we do not have a fee system for the NPDES program, and we recommend that we begin going to one. This conference report, in fact, does that for the first time in Michigan.

It's an incredibly outlandish and false statement to say that rules are needed to enforce the law. That's absolutely not true. This program was started in 1972. It's over 30 years old. Various rules have been promulgated over the years. The program exists. There's history behind it. You don't need rules to enforce this program which has been enforced for years in Michigan. All this conference report does is it has a fee for the first time.

It's also not true to say we risk losing EPA authority if we don't have rules. That's hogwash. The NPDES federal program is interested in the content of your program. They don't take away delegation to a state just because the agency has to come back to a legislature to get authority to do something. That's an outlandish statement that we would risk losing EPA delegation if we don't have rulemaking authority for the agency.

The Department of Environmental Quality has made outlandish statements in the last few weeks about the issue of rules. One of the things they've actually put down on paper is that, "Well, jeeze, you know, we need rules because sometimes we have to act expeditiously." It takes probably a year to promulgate a rule under the Administrative Procedures Act. We can pass a bill in 10 days in this Legislature. If expeditious action is the issue, we can act faster than they can if there's some kind of emergency situation that heretofore over 30 years has not developed under this program.

This Legislature, in my opinion, should never ever again be cavalier about giving an agency rulemaking authority because a recent Michigan Supreme Court decision eliminated any effective role we have in overseeing those rules. We should never ever again just carte blanche give them rulemaking authority. If they have an issue and they need to change the program, and the statute doesn't allow them to do that, they come to us. We will review it, and we will then act in a reasonable fashion.

I am actually astounded and shocked at the irresponsible language being bandied about that we should vote against this fee--money to our budget that relieves the General Fund of pressure, relieves the taxpayers of assuming the burden on this program--because we don't grant the Department of Environmental Quality carte blanche authority to do whatever the heck they want in this state. Never again will we do that. Never. This agency is out of control. Every member who I have talked to in the last several weeks about the NPDES program have come to me with complaints about that agency in terms of how they act. We're not going to just let them do whatever they want to do.

Senator Sikkema's second statement is as follows:

I rise for a second time to speak on this conference report. I will say--I don't hesitate, and I don't apologize for saying this. Anybody who says this violates a budget agreement is not telling the truth. I don't care if you are the Minority Leader of the Michigan Senate; I don't care if you are the Governor of Michigan; I don't care if you are the director of the Department of Natural Resources or the Department of Environmental Quality. If you claim this violates a budget agreement, you are not telling the truth.

Once again, I rise to say it is preposterous to argue. It is preposterous to say if we don't grant the Department of Environmental Quality rulemaking authority, we risk losing delegation of this program. That is silly, and it isn't true. This program is based on the content of the program. If there is a flaw in the Michigan program, the federal EPA will say you need to correct the flaw, and we can correct it in the Legislature. That's what we do. The Constitution of this state doesn't charge the Department of Environmental Quality with protecting the environment. Let me read the Constitution: "The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." It is our job, not theirs. We will decide what authority they have, not them.

As long as I have a say in this matter, we will never in the Michigan Senate give carte blanche authority to a state agency that has any potential of harming our economic recovery because that is the most important issue facing this state. I say here, today and now, this rules issue is a line in the sand, and it won't be crossed. The Governor can veto a bill; that's fine. It is a line in the sand that we are not going to just cavalierly give this agency rulemaking authority ever again.

Senator Birkholz's statement is as follows:

I would like to begin by thanking my colleagues: Senator Sikkema, who's shown great leadership in this very contentious issue; Senator McManus; and Senator Brater, who's worked hard and diligently from the other side of the aisle.

Let me point out that Michigan does not currently charge a fee to those who would or could discharge pollutants into the surface waters--any surface water--of our state. We are the only state in the Great Lakes basin that does not charge that fee, and for the past several years, have had the taxpayers of this state pay that fee. This bill will implement a new fee for the NPDES program. It will be assessed against the various categories of facilities that could and may discharge into the surface waters of our state, generating approximately $3 million.

Today we are taking a new and rather large step that will both help to regulate discharges into the waters of our state and preserve legitimate business activity in this state. Many of our state's permit holders want to do the right thing and are working hard and have supported the implementation of this fee, but they want to know that it's reasonable and that it's directly related to the department's real workload in working to regulate these discharges.

The $3 million may not have been as high as some groups or the Governor wanted. In fact it is less, but they know how important it is to preserve business investment in Michigan. We believe that this is a good compromise--striking an environmental and economic balance.

I would like to clarify that this was recommended in the Great Lakes Conservation Task Force--chaired by Senator Sikkema, a bipartisan group, in 2001. They recommended that we take this action to help carefully regulate the health of our state waters.

Finally, this bill will provide the Legislature with new oversight on how the Department of Environmental Quality will use the money and regulate this program. It will restrict the department's use of rules, but it will also make sure that the Legislature monitors how rules are done, how rules are promulgated, and make sure that they will not overly burden our economic partners, and thus, have a positive impact on our environment and a positive impact on our business community and our economic growth.

The Constitution has specifically delegated the role of protecting Michigan's environmental resources to the legislative branch under Article IV, Section 52. We take that charge very seriously, and we do not want to delegate that away. We want to responsibly uphold the Constitution of this state. I urge your support for this conference report.

Senator McManus' statement is as follows:

I would ask that this body support the conference report of Senate Bill No. 252. I believe that we can be proud of the work that we've done to protect our waters in this particular conference report. This conference report is an excellent compromise to what we passed out of here last July, I think, 38-0.

It does, I think, three very important things. First of all, and probably most importantly, it meets the target set in last year's budget--$2 million from General Fund and $3 million in fees, a total of $5 million.

Secondly, and probably just as important, it provides for legislative oversight. I believe, and I think many of my colleagues would believe, that that is probably one of the most and major responsibilities as an elected official--to provide oversight of departments.

Third, by supporting this conference report, you will keep this program, NPDES, here in Michigan rather than sending it to the feds in another state.

I just want to thank my Senate colleagues, Senators Birkholz and Brater, and my House colleagues for their diligent work on this particular issue. I would urge for your support.

Senator Cropsey's statement is as follows:

I wish to speak a little bit on the rulemaking process itself. I was chairman of the Joint Committee on Administrative Rules when the Department of Corrections, through the Governor's office, in essence circumvented the Joint Committee on Administrative Rules. We ended up having this go all the way through the court system, all the way up to the Supreme Court. The Supreme Court basically found in favor of the executive.

Now, what this happened to do, and I remember talking to at that time Governor Engler afterwards, and I said, "Governor, you have just emasculated the Legislature's oversight of the rulemaking authority." He said, "Well, if you write the laws tight enough as they ought to be written, you don't need rules to start with."

That Governor's perception of what ought to be done and how it ought to be done as far as rulemaking authority--keep this in mind, and this was my big argument when it came to that court case--was when the Legislature gives rulemaking authority to an agency, it gives some of its legislative power to that agency. When you're looking at separation of powers, why on earth would the Legislature want to give the executive branch legislative authority? That's what rulemaking authority really is. I think it's not a Democrat or Republican issue, even though this Governor obviously would like to make it that. It certainly wasn't that issue when we had the previous Governor in power, and those of us on the Republican side took strong exception with the Governor on that whole issue.

This is an issue of is the Legislature going to stand up and be the Legislature, or are we going to start turning our authority over to the executive branch? I don't think we ought to turn our authority over to the executive branch. The fact is, what we were doing after that court decision is when different bills would come up that opened up different sections of laws, we would be taking the rulemaking authority away from the executive branch, as we should, because we have no oversight anymore over the rulemaking authority as we had at one time.

I would strongly urge that we support this conference report. This is something that we did do, and we're in the process of doing under the Engler administration because it was not a partisan issue. It was a separation of powers issue. I would strongly urge that we not break that precedent and start giving the executive branch our authority.

Senator Brater's first statement is as follows:

I feel it is important to explain why I did not sign this conference committee report this morning, considering the fact that I am the sponsor of Senate Bill No. 252. I have been working on this bill with my colleagues here for more than a year--with people in the department, with advocates in the environmental community, as well as business and ag, other stakeholders, and the municipalities. We have all worked very, very hard on this bill, and I appreciate the good dialogues that we've had, but I feel that doing the right thing today on this conference report is of the utmost importance for the future of Michigan's environment.

Let me make it very clear that I still firmly believe that costs for environmental monitoring should be paid not from the General Fund, not by the taxpayers, but by those who are responsible for the polluting. Currently, Michigan is one of only eight states nationwide that requires taxpayers to pay the costs of polluters who jeopardize our state's lakes, rivers, and streams. And we are the only Great Lakes state to do so. In the Governor's budget message, she pioneered the proposal to create a fee-based system for running the NPDES program which monitors the toxics that manufacturers and others are allowed to discharge into our surface water. That was a very fair and equitable thing to do. In efforts to preserve the bill's original intent in conference committee today, Representative Tobocman and I proposed two amendments to the conference report that would have removed the House-proposed exemption for agriculture and also restored the rule promulgation authority of the DEQ, which is very important to preserve in order to give the DEQ the ability to enforce this law delegated to us by the EPA, and we don't want to lose that delegation.

These amendments came in response to the House recommendations that the bill to charge fees to NPDES permit holders include an exemption for specific farms and ag businesses totaling tens of thousands of dollars. Most of the additional cost is transferred to the ratepayers of the city of Detroit water utility. This legislation was originally part of the FY 2003 budget compromise, however, the bill has been stalled in conference committee since October of last year, leaving the program without funding for the full year.

I believe that in mandating full funding of the DEQ and not allowing the agriculture exemption, we remain faithful to our original budget agreement, or we would remain faithful if we did that. That's not what this conference report does. These fees place the financial responsibility on the polluters, rather than on the backs of taxpayers. Not only is this sound environmental policy, it is sound economic policy as well. Unfortunately, not all of my colleagues agree.

The House version, as I said, removed the rule promulgation requirement from the DEQ. In addition to violating our budget agreement, the removal of the DEQ's rule promulgation authority threatens to put Michigan out of compliance with federal requirements. According to Director Chester, this may result in the program reverting to the EPA regional office in Chicago. Sending Michigan's businesses, municipalities, and other dischargers to Chicago to obtain permits flies in the face of the Governor's overall commitment to protect our environment and improve our economy. It flies in the face of the work we in this chamber have done to accomplish that as well.

Therefore, I urge you to join me in opposing this conference report this morning.

Senator Brater's second statement is as follows:

I have a number of things that I feel are important to comment on--the previous speaker's comments.

First of all, look at what this conference report is doing in terms of reallocating the funding to protect Michigan agriculture. It is certainly an objective of all of us to protect Michigan agriculture, but Michigan agriculture is a discharger and needs to bear part of the burden in protecting water quality in our lakes and streams. We do a lot of talk and lip service in the Legislature about reinvesting in our cities, and to continually disproportionately put a burden on one city to balance our budget on the backs of our citizens who are the least able to afford to pay in the entire state is unconscionable. I sincerely hope that this Legislature--when we talk about wanting to save farmland by reinvesting in cities that we will act and not just speak to that objective.

Second, the rulemaking authority that this conference reports revokes is not just of this particular program, but of all the programs that the DEQ runs--as I read the language in the bill. Almost all of us were here under the previous administration and could have voted to remove rulemaking ability under the former Governor. We did not! So I only have to question why all of the sudden we have become capable of removing it under this Governor?

The director of the department is a former official of the enforcement division of the U.S. EPA. He knows well what he is talking about when he warns us that by removing this rulemaking ability from the department that we are placing in jeopardy our delegation of running this program from the EPA and that we are very much in risk at sending this program to Chicago, which I know that the business communities, municipalities, and other dischargers do not want to see happen.

Now just let me remind you what we are talking about here. We are talking about regulating dangerous chemicals that are discharged by permit into the bodies of this state--bodies of water, surface water. They are chemicals like cadmium, PCBs, and mercury. The presence of these chemicals, especially mercury, in our lakes and streams has resulted in the department having to issue fish advisories warning people, especially pregnant women and children, not to eat excessive amounts of fish from our lakes and streams. We are depriving our people of the ability and the pleasure of fishing and eating at will out of our streams. I'm talking about the considerable tourism business where people would like to come here, fish, and be able to eat the fish that they take out of our streams. This program directly affects our ability to keep that water clean. It also affects the ability for us to swim on our beaches. It regulates combined sewer overflows, and we know that there have been beach closures in the past. Unfortunately, we are likely to have them again in the near future. We want to make sure that our lakes and streams are swimmable in this state.

Third, we do have to keep an eye on the drinking water. No drinking water supply has been threatened, but we want to make sure that we keep it that way. Some communities in this state do draw their water from our surface water for drinking water purposes. So we are taking on a huge responsibility. We need to make sure we fulfill our commitment to the citizens to the state of Michigan to keep our environment clean.

By unanimous consent the Senate returned to the order of

Messages from the Governor

Senator Hammerstrom moved that consideration of the following bills be postponed for today:

Senate Bill No. 195

Senate Bill No. 364

Senate Bill No. 293

Senate Bill No. 265

Senate Bill No. 288

Senate Bill No. 540

Senate Bill No. 283

Senate Bill No. 464

Senate Bill No. 466

Senate Bill No. 395

Senate Bill No. 687

Senate Bill No. 474

The motion prevailed.

The following messages from the Governor were received and read:

February 5, 2004

I respectfully submit to the Senate, pursuant to Section 6 of Article 5 of the Michigan Constitution of 1963, the following appointments and reappointment to state office under Section 301 of the Nonprofit Healthcare Corporation Reform Act, 1980 PA 350, MCL 550.1301:

Blue Cross Blue Shield of Michigan Board of Directors

Mr. John M. Hamilton of 7403 River Road, Marine City, Michigan 48039, county of St. Clair, succeeding George Perles, whose term has expired, representing the public, for a term commencing February 18, 2004 and expiring February 18, 2006.

Ms. Teola P. Hunter of 8120 East Jefferson, Condo 2M, Detroit, Michigan 48214, county of Wayne, succeeding Sharon Wise, whose term has expired, representing the public and retired individuals 62 years of age or older, for a term commencing February 18, 2004 and expiring February 18, 2006.

Mr. Cullan F. Meathe of 217 Touraine Road, Grosse Pointe Farms, Michigan 48236, county of Wayne, succeeding Stephen Terry, whose term has expired, representing the public, for a term commencing February 18, 2004 and expiring February 18, 2006.

Mr. James G. Agee of 9416 Lookout Pointe, Laingsburg, Michigan 48848, county of Shiawassee, reappointed to represent the public and retired individuals 62 years of age or older, for a term expiring February 18, 2006.

February 6, 2004

I respectfully submit to the Senate, pursuant to Section 6 of Article 5 of the Michigan Constitution of 1963, the following appointment to state office under Section 4 of the Michigan Gaming Control and Revenue Act, Initiated Law of 1996, MCL 432.204:

Michigan Gaming Control Board

Mr. Benjamin J. Friedman, a Democrat, of 25105 East Roycourt, Huntington Woods, Michigan 48070, county of Oakland, succeeding the Honorable Roman S. Gribbs, whose term has expired, appointed for a term commencing February 6, 2004 and expiring December 31, 2007.

Sincerely,

Jennifer M. Granholm

Governor

The appointments were referred to the Committee on Government Operations.

Messages from the House

Senator Hammerstrom moved that consideration of the following bills be postponed for today:

Senate Bill No. 506

Senate Bill No. 557

Senate Bill No. 806

Senate Bill No. 502

The motion prevailed.

Senate Bill No. 334, entitled

A bill to amend 1951 PA 51, entitled "An act to provide for the classification of all public roads, streets, and highways in this state, and for the revision of that classification and for additions to and deletions from each classification; to set up and establish the Michigan transportation fund; to provide for the deposits in the Michigan transportation fund of specific taxes on motor vehicles and motor vehicle fuels; to provide for the allocation of funds from the Michigan transportation fund and the use and administration of the fund for transportation purposes; to set up and establish the truck safety fund; to provide for the allocation of funds from the truck safety fund and administration of the fund for truck safety purposes; to set up and establish the Michigan truck safety commission; to establish certain standards for road contracts for certain businesses; to provide for the continuing review of transportation needs within the state; to authorize the state transportation commission, counties, cities, and villages to borrow money, issue bonds, and make pledges of funds for transportation purposes; to authorize counties to advance funds for the payment of deficiencies necessary for the payment of bonds issued under this act; to provide for the limitations, payment, retirement, and security of the bonds and pledges; to provide for appropriations and tax levies by counties and townships for county roads; to authorize contributions by townships for county roads; to provide for the establishment and administration of the state trunk line fund, critical bridge fund, comprehensive transportation fund, and certain other funds; to provide for the deposits in the state trunk line fund, critical bridge fund, comprehensive transportation fund, and certain other funds of money raised by specific taxes and fees; to provide for definitions of public transportation functions and criteria; to define the purposes for which Michigan transportation funds may be allocated; to provide for Michigan transportation fund grants; to provide for review and approval of transportation programs; to provide for submission of annual legislative requests and reports; to provide for the establishment and functions of certain advisory entities; to provide for conditions for grants; to provide for the issuance of bonds and notes for transportation purposes; to provide for the powers and duties of certain state and local agencies and officials; to provide for the making of loans for transportation purposes by the state transportation department and for the receipt and repayment by local units and agencies of those loans from certain specified sources; and to repeal acts and parts of acts," by amending section 13 (MCL 247.663), as amended by 1999 PA 54.

Substitute (H-2).

The question being on concurring in the substitute made to the bill by the House,

The substitute was concurred in, a majority of the members serving voting therefor, as follows:

Roll Call No. 29 Yeas--38

Allen Clark-Coleman Jacobs Sanborn

Barcia Clarke Jelinek Schauer

Basham Cropsey Johnson Scott

Bernero Emerson Kuipers Sikkema

Birkholz Garcia Leland Stamas

Bishop George McManus Switalski

Brater Gilbert Olshove Thomas

Brown Goschka Patterson Toy

Cassis Hammerstrom Prusi Van Woerkom

Cherry Hardiman

Nays--0

Excused--0

Not Voting--0

In The Chair: Sanborn

The question being on concurring in the committee recommendation to give the bill immediate effect,

The recommendation was concurred in, 2/3 of the members serving voting therefor.

The bill was referred to the Secretary for enrollment printing and presentation to the Governor.

The President pro tempore, Senator Birkholz, resumed the Chair.

General Orders

Senator Hammerstrom moved that the Senate resolve itself into the Committee of the Whole for consideration of the General Orders calendar.

The motion prevailed, and the President pro tempore, Senator Birkholz, designated Senator Brown as Chairperson.

After some time spent therein, the Committee arose; and, the President pro tempore, Senator Birkholz, having resumed the Chair, the Committee reported back to the Senate, favorably and without amendment, the following bills:

Senate Bill No. 774, entitled

A bill to amend 1986 PA 281, entitled "The local development financing act," by amending section 21a (MCL 125.2162a), as amended by 2002 PA 575.

Senate Bill No. 653, entitled

A bill to amend 1994 PA 451, entitled "Natural resources and environmental protection act," by amending section 20129a (MCL 324.20129a), as amended by 1999 PA 30.

Senate Bill No. 875, entitled

A bill to amend 1990 PA 100, entitled "City utility users tax act," by amending section 5 of chapter 1 (MCL 141.1155), as amended by 1998 PA 241.

The bills were placed on the order of Third Reading of Bills.