HB-5069, As Passed House, June 4, 2008
SUBSTITUTE FOR
HOUSE BILL NO. 5069
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 32705 and 32706 (MCL 324.32705 and 324.32706),
section 32705 as amended by 2006 PA 35 and section 32706 as amended
by 1996 PA 434, and by adding sections 32706a, 32706b, 32706c,
32706d, and 32706e.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 32705. (1) Except as otherwise provided in this section,
the
owner of real property who has the intends to develop capacity
on that property to make a new or increased large quantity
withdrawal from the waters of this state shall register the
withdrawal with the department after using the assessment tool, if
required under this part, and prior to beginning that withdrawal. A
House Bill No. 5069 (H-11) as amended June 4, 2008
registration under this section may be made using the online
registration process.
(2) The following persons are not required to register under
this section:
(a)
A Subject to subdivision
(c), a person who has previously
registered for that property under this part, unless that
registrant develops new or increased withdrawal capacity on the
property of an additional 100,000 gallons of water per day from the
waters of the state.
(b)
A community supply owned by a political subdivision that
holds
required to obtain a permit under the safe drinking water
act, 1976 PA 399, MCL 325.1001 to 325.1023.
(c)
A person holding required
to obtain a permit under section
32723.
(d) The owner of a noncommercial well located on single-family
residential property [not exceeding 14 units and not more than 3 acres in
size] unless that well is a lake augmentation well.
(e) A person required to obtain a determination from the
department under section 17 of the safe drinking water act, 1976 PA
399, MCL 325.1017.
(3)
The following persons shall register under this section
but
may register after beginning the withdrawal but before 90 days
after
the effective date of the amendatory act that added this
section:
(a)
A person who was developing new or increased withdrawal
capacity
on the effective date of the amendatory act that added
this
section.
(b)
A person who was not required to register under this part
prior
to the effective date of the amendatory act that added this
section.
(3) (4)
Subsection (1) does not limit a
property owner's
ability to withdraw water from a test well prior to registration if
the test well is constructed in association with the development of
new or increased withdrawal capacity and used only to evaluate the
development of new or increased withdrawal capacity.
(4) (5)
A registration under this section
by the owner of a
farm in which the withdrawal is intended for an agricultural
purpose,
including irrigation for an agricultural purpose, shall
may be submitted to the department of agriculture instead of the
department.
(5) (6)
A registration submitted under this
section that is
not submitted via the online registration process shall be on a
form provided by the department or the department of agriculture,
as appropriate.
(6) (7)
In calculating the total amount of
an existing or
proposed withdrawal for the purpose of this section, a person shall
combine all separate withdrawals that the person makes or proposes
to make, whether or not these withdrawals are for a single purpose
or are for related but separate purposes.
(7) (8)
The department shall aggregate
information received by
the state related to large quantity withdrawal capacities within
the state and reported large quantity withdrawals in the state.
(8) Unless a property owner develops the capacity to make the
new or increased large quantity withdrawal within 18 months after
the property owner registers under subsection (1), the registration
is no longer valid.
Sec. 32706. (1) Not later than 1 year after the effective date
of the amendatory act that amended this section, the department
shall develop and implement an internet-based online registration
process that may be used for registrations under section 32705. The
online registration process shall be designed to work in
conjunction with the assessment tool.
(2) Each registration under this part shall consist
of a
include both of the following:
(a) A statement and supporting documentation that includes all
of the following:
(i) (a)
The place and source of the
proposed or existing
withdrawal.
(ii) (b)
The location of any discharge or
return flow
associated with the proposed withdrawal.
(iii) (c)
The location and nature of the
proposed or existing
water user.
(iv) The capacity of the equipment used for making the proposed
withdrawal.
(v) (d)
The actual or estimated
average annual and monthly
volumes and rate of proposed withdrawal.
(vi) (e)
The actual or estimated
average annual and monthly
volumes and rates of consumptive use from the proposed withdrawal.
(b) For a new or increased large quantity withdrawal from a
stream, small river, or large river, or groundwater, the
determination from the use of the assessment tool under section
32706b or the determination from a site-specific review, as
appropriate.
Sec. 32706a. (1) Not later than 4 months after the effective
date of the amendatory act that added this section, the department
shall develop and make available for testing and evaluation an
internet-based water withdrawal assessment tool based upon the
recommendations of the former groundwater conservation advisory
council and the requirements of this part. The assessment tool
shall contain a flow-based safety factor. Beginning 1 year after
the effective date of the amendatory act that added this section,
the department shall implement the assessment tool.
(2) The assessment tool shall determine whether a proposed
withdrawal is a zone A, zone B, zone C, or zone D withdrawal and
whether a proposed withdrawal is likely to cause an adverse
resource impact based upon whether the proposed withdrawal is from
a cold river system, a cold-transitional river system, a cool river
system, or a warm river system. The assessment tool shall also
distinguish the impact of a proposed withdrawal based upon whether
the proposed withdrawal is from a stream, a small river, or a large
river, subject to the following:
(a) Cool streams and warm streams with less than 3 square
miles of drainage area shall be integrated into the next largest
drainage area for purposes of assessment tool determinations for
groundwater and surface water withdrawals.
(b) Cool streams and warm streams with less than 20 square
miles of drainage area and less than 1 cubic foot per second of
index flow shall be integrated into the next largest drainage area
for purposes of assessment tool determinations for groundwater and
surface water withdrawals.
(c) Cool streams and warm streams with a drainage area of more
than 3 square miles but less than 6 square miles shall be
integrated into the next largest drainage area for purposes of
assessment tool determinations for groundwater withdrawals.
(3) The assessment tool shall allow the user to enter into
fields the following data related to a proposed withdrawal:
(a) The capacity of the equipment used for making the
withdrawal.
(b) The location of the withdrawal.
(c) The withdrawal source, whether surface water or
groundwater.
(d) If the source of the withdrawal is groundwater, whether
the source of the withdrawal is a glacial stratum or bedrock.
(e) The depth of the withdrawal if from groundwater.
(f) The amount and rate of water to be withdrawn.
(g) Whether the withdrawal will be intermittent.
(4) The assessment tool shall contain a print function that
allows the user, upon receipt of the assessment tool's
determination, to print the data submitted and the determination
returned along with a date and time.
(5) The assessment tool shall work in conjunction with the
online registration process and shall also allow operation
independent of the online registration process.
(6) On an ongoing basis, the department shall add verified
data to the assessment tool's database from reports submitted under
sections 32707, water use conservation plans submitted under
section 32708, reports submitted under the safe drinking water act,
1976 PA 399, MCL 325.1001 to 325.1023, and other sources of data
regarding the waters of the state. Additionally, the department
shall make technical modifications to the assessment tool related
to considerations of temperature, hydrology, and stream or river
flow based upon a scientific methodology adopted by order of the
commission.
(7) The department in consultation with the water resources
conservation advisory council created in section 32803 and the
approval of the commission shall develop a protocol for documenting
the difference between the baseline capacity and actual use by
large quantity water users that existed as of February 28, 2006.
Once the protocol has been established, the department shall take
into consideration the difference when making site-specific
determinations or permit decisions under this part. The department
shall adjust the assessment tool to take into consideration the
difference if it determines it is necessary to protect current
users of water or to avoid adverse resource impacts.
(8) The department shall report annually to the standing
committees of the legislature with jurisdiction primarily
pertaining to natural resources and the environment on the
implementation of the assessment tool.
Sec. 32706b. (1) Upon implementation of the assessment tool
under section 32706a, prior to registering a new or increased large
quantity withdrawal under section 32706 for a proposed withdrawal
from a stream, small river, or large river, or from groundwater,
the property owner proposing to make the withdrawal shall utilize
House Bill No. 5069 (H-11) as amended June 4, 2008
the assessment tool by entering the data related to the proposed
withdrawal into the assessment tool. [However, a person who intends to
make a new or increased large quantity withdrawal for the purpose of dewatering a mine that has a permit under part 31 and is not regulated under part 631, 632, or 637 may choose to submit a request for a site-specific review rather than utilize the assessment tool.]
(2) Upon entry of the relevant data under subsection (1), the
assessment tool shall indicate to the user whether or not the
proposed withdrawal is likely to cause an adverse resource impact
and whether the proposed withdrawal falls into the category of zone
A, zone B, zone C, or zone D.
(3) If the assessment tool designates a proposed withdrawal as
a zone A withdrawal, or a zone B withdrawal in a cool river system
or a warm river system, the property owner may register the
withdrawal and proceed to make the withdrawal.
(4) If the assessment tool designates a proposed withdrawal as
a zone B withdrawal in a cold-transitional river system, or a zone
C or zone D withdrawal, the property owner shall not register the
withdrawal or make the withdrawal except in accordance with section
32706c.
(5) After a property owner registers a withdrawal, if, in
developing the capacity to make the withdrawal, the conditions of
the withdrawal deviate from the specific data that were entered
into the assessment tool, the property owner shall rerun the
assessment tool and shall enter the corrected data into the
assessment tool. The property owner shall notify the department of
the corrected data and the corrected results from the assessment
tool. If the corrected data do not change the determination of the
assessment tool, the property owner may proceed with the
withdrawal. If the corrected data change the determination from the
assessment tool, the property owner shall proceed under the
provisions of this part related to the corrected assessment tool
determination.
Sec. 32706c. (1) If the assessment tool determines that a
proposed withdrawal is a zone B withdrawal in a cold-transitional
river system, or a zone C or zone D withdrawal, the property owner
shall submit to the department a request for a site-specific
review. Additionally, if the assessment tool determines that a
proposed withdrawal is a zone A withdrawal, or a zone B withdrawal
in a cool river system or a warm river system and the property
owner wishes to have a site-specific review, the property owner may
submit to the department a request for a site-specific review. A
request for a site-specific review shall be submitted to the
department in a form required by the department and shall include
all of the following:
(a) The information described in section 32706a(3).
(b) The intended maximum monthly and annual volumes and rates
of the proposed withdrawal, if different from the capacity of the
equipment used for making the proposed withdrawal.
(c) If the amount and rate of the proposed withdrawal will
have seasonal fluctuations, the relevant information related to the
seasonal use of the proposed withdrawal.
(d) A description of how the water will be used and the
location, amount, and rate of any return flow.
(e) Any other information the property owner would like the
department to consider in making its determination under this
section.
(2) Upon receipt of a request for a site-specific review, the
department shall consider the information submitted to the
department under subsection (1) and shall consider the actual
stream or river flow data of any affected stream reach. The
department shall also apply the drainage area aggregation standards
provided in section 32706a(2)(a) and (b), if applicable. The
department shall not rely on the assessment tool's determination in
making its determination under a site-specific review.
(3) The department shall complete its site-specific review
within 10 working days of submittal of a request for a site-
specific review. If the department determines, based upon a site-
specific review, that the proposed withdrawal is a zone A or a zone
B withdrawal, the department shall provide written notification to
the property owner and the property owner may register the
withdrawal and may proceed with the withdrawal.
(4) Subject to subsection (5), if the department determines in
conducting a site-specific review that the proposed withdrawal is a
zone C withdrawal, the property owner may register the withdrawal
and proceed to make the withdrawal if the property owner self-
certifies that he or she is implementing applicable environmentally
sound and economically feasible water conservation measures
prepared under section 32708a or has self-certified that he or she
is implementing applicable environmentally sound and economically
feasible water conservation measures developed for the water use
associated with that specific withdrawal.
(5) If a site-specific review determines that the withdrawal
is a zone C withdrawal in which either of the following conditions
exists, the person proposing the withdrawal shall not register the
withdrawal and shall not proceed with making the withdrawal unless
the person obtains a water withdrawal permit under section 32723:
(a) The proposed withdrawal would reduce the flow of a cold
small river by 14% or more of its index flow.
(b) The proposed withdrawal would reduce the flow of a cool
river system or a warm river system by 20% or more of its index
flow.
(6) If the department determines, based upon a site-specific
review, that the proposed withdrawal is a zone D withdrawal, the
property owner shall not register the withdrawal and shall not make
the withdrawal unless he or she applies for a water withdrawal
permit under section 32723 and the withdrawal is authorized under
that section.
(7) After a property owner registers a withdrawal following a
site-specific review, if, in developing the capacity to make the
withdrawal, the conditions of the withdrawal deviate from the
specific data that were evaluated in the site-specific review, the
property owner shall notify the department of the corrected data
and the department shall confirm its determination under the site-
specific review. If the corrected data do not change the
determination under the site-specific review, the property owner
may proceed with the withdrawal. If the corrected data change the
determination under the site-specific review, the property owner
shall proceed under the provisions of this part related to the
corrected determination.
(8) Notwithstanding any other provision of this section, prior
to the implementation date of the assessment tool under section
32706a, a property owner proposing to develop capacity on his or
her property to make a new or increased large quantity withdrawal
may submit to the department a request for an interim site-specific
review under this subsection to determine whether or not the
proposed withdrawal is likely to cause an adverse resource impact.
However, a property owner proposing to develop capacity on his or
her property to make a new or increased large quantity withdrawal
of 1,000,000 gallons per day or more is required to obtain an
interim site-specific review under this subsection. The department,
upon request, shall conduct an interim site-specific review under
this subsection within a reasonable time period not to exceed 30
days based upon an evaluation of reasonably available information.
For purposes of this part, a determination under an interim site-
specific review under this subsection shall be afforded the same
status as a site-specific review otherwise conducted under this
section.
Sec. 32706d. (1) The department shall develop a protocol for
the collection of stream or river flow measurements by persons
other than the department for use by the department in the
administration of this part. The protocol shall ensure that stream
or river flow measurements collected for this purpose meet the same
data quality standards as stream or river flow measurements
collected by the United States geological survey. The department
shall consult with the United States geological survey and other
recognized scientific experts in developing this protocol,
including an appropriate length of record.
(2) The department may use stream or river flow data collected
using the protocol developed under subsection (1) in conducting
site-specific reviews, in making water withdrawal permit decisions
under section 32723, in issuing permits under the safe drinking
water act, 1976 PA 399, MCL 325.1001 to 325.1023, in updating the
water withdrawal assessment tool as appropriate, or in other
actions requiring an evaluation of stream or river flow.
(3) The department may establish a program to train and
certify individuals in the collection of stream or river flow
measurements. The department shall charge a fee sufficient to
reimburse the department for the cost of a program developed under
this subsection. The department may enter into a cooperative
agreement with the United States geological survey to provide
training and certification under this section.
Sec. 32706e. (1) Notwithstanding any other provision of this
part, the department shall not authorize, through use of the
assessment tool, a site-specific review, or a permit, a withdrawal
that uses additional stream or river flow made available by
restorative measures unless the restorative measures are conducted
in conjunction with a withdrawal and are specifically authorized in
a permit.
(2) If a person conducts restorative measures that are not
related to a large quantity withdrawal, the person shall provide
detailed information to the department documenting the restorative
measures and documenting the increased stream or river flow or
temperature improvements achieved through the restorative measures.
(3) As used in this section, "permit" means a permit under
section 32723 or the safe drinking water act, 1976 PA 399, MCL
325.1001 to 325.1023.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 94th Legislature are
enacted into law:
(a) House Bill No. 4343.
(b) House Bill No. 5065.
(c) House Bill No. 5066.
(d) House Bill No. 5067.
(e) House Bill No. 5068.
(f) House Bill No. 5070.
(g) House Bill No. 5071.
(h) House Bill No. 5072.
(i) House Bill No. 5073.