Bill Text: MI HB4882 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Natural resources; Great Lakes; sinking of vessels and other recreational diving structures in the Great Lakes for scuba diving; provide for. Amends secs. 1301, 32501, 32503, 32512, 76101, 76102, 76103, 76104, 76105, 76107, 76108, 76109, 76110, 76111, 76112, 76113, 76114, 76115 & 76118 of 1994 PA 451 (MCL 324.1301 et seq.) & adds secs. 32512b & 76112a.

Spectrum: Partisan Bill (Republican 3-0)

Status: (Introduced - Dead) 2011-09-07 - Printed Bill Filed 08/25/2011 [HB4882 Detail]

Download: Michigan-2011-HB4882-Introduced.html

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HOUSE BILL No. 4882

 

August 24, 2011, Introduced by Reps. MacMaster, Potvin and Rogers and referred to the Committee on Natural Resources, Tourism, and Outdoor Recreation.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 1301, 32501, 32503, 32512, 76101, 76102,

 

76103, 76104, 76105, 76107, 76108, 76109, 76110, 76111, 76112,

 

76113, 76114, 76115, and 76118 (MCL 324.1301, 324.32501, 324.32503,

 

324.32512, 324.76101, 324.76102, 324.76103, 324.76104, 324.76105,

 

324.76107, 324.76108, 324.76109, 324.76110, 324.76111, 324.76112,

 

324.76113, 324.76114, 324.76115, and 324.76118), section 1301 as

 

amended by 2009 PA 120, sections 32501 and 32512 as amended by 2003

 

PA 14, sections 32503, 76105, and 76109 as amended by 2004 PA 325,

 

sections 76101 and 76115 as added by 1995 PA 58, sections 76102,

 

76103, 76104, 76108, 76110, 76111, 76112, 76113, 76114, and 76118

 

as amended by 2001 PA 75, and section 76107 as amended by 2001 PA

 

155, and by adding sections 32512b and 76112a.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1301. As used in this part:

 

     (a) "Application period" means the period beginning when an

 

application for a permit is received by the state and ending when

 

the application is considered to be administratively complete under

 

section 1305 and any applicable fee has been paid.

 

     (b) "Department" means the department, agency, or officer

 

authorized by this act to approve or deny an application for a

 

particular permit.

 

     (c) "Director" means the director of the state department

 

authorized under this act to approve or deny an application for a

 

particular permit or the director's designee.

 

     (d) "Permit" means a permit or operating license required by

 

any of the following sections or by rules promulgated thereunder,

 

or, in the case of section 9112, by an ordinance or resolution

 

adopted thereunder:

 

     (i) Section 3104, floodplain alteration permit.

 

     (ii) Section 3503, permit for use of water in mining iron ore.

 

     (iii) Section 4105, sewerage system construction permit.

 

     (iv) Section 6516, vehicle testing license.

 

     (v) Section 6521, motor vehicle fleet testing permit.

 

     (vi) Section 8310, restricted use pesticide dealer license.

 

     (vii) Section 8310a, agricultural pesticide dealer license.

 

     (viii) Section 8504, license to manufacture or distribute

 

fertilizer.

 

     (ix) Section 9112, local soil erosion and sedimentation control

 

permit.

 

     (x) Section 11509, solid waste disposal area construction

 

permit.

 

     (xi) Section 11512, solid waste disposal area operating

 

license.

 

     (xii) Section 11542, municipal solid waste incinerator ash

 

landfill operating license amendment.

 

     (xiii) Section 11702, septage waste servicing license or septage

 

waste vehicle license.

 

     (xiv) Section 11709, septage waste site permit.

 

     (xv) Section 30104, inland lakes and streams project permit.

 

     (xvi) Section 30304, state permit for dredging, filling, or

 

other activity in wetland. Permit includes an authorization for a

 

specific project to proceed under a general permit issued under

 

section 30312.

 

     (xvii) Section 31509, dam construction, repair, removal permit.

 

     (xviii) Section 32312, flood risk, high risk, or environmental

 

area permit.

 

     (xix) Section 32503, 32512, permit for dredging and filling

 

bottomland.

 

     (xx) Section 35304, department permit for critical dune area

 

use.

 

     (xxi) Section 36505, endangered species permit.

 

     (xxii) Section 41702, game bird hunting preserve license.

 

     (xxiii) Section 42101, dog training area permit.

 

     (xxiv) Section 42501, fur dealer's license.

 

     (xxv) Section 42702, game dealer's license.

 

     (xxvi) Section 44513, charter boat operating permit under

 

reciprocal agreement.

 

     (xxvii) Section 44517, boat livery operating permit.

 

     (xxviii) Section 45503, permit to take frogs for scientific use.

 

     (xxix) Section 45902, game fish propagation license.

 

     (xxx) Section 45906, game fish import license.

 

     (xxxi) Section 61525, oil or gas well drilling permit.

 

     (xxxii) Section 62509, brine, storage, or waste disposal well

 

drilling or conversion permit or test well drilling permit.

 

     (xxxiii) Section 63103a, metallic mineral mining permit.

 

     (xxxiv) Section 63514 or 63525, surface coal mining and

 

reclamation permit or revision of the permit during the term of the

 

permit, respectively.

 

     (xxxv) Section 63704, sand dune mining permit.

 

     (xxxvi) Section 72108, use permits for Michigan trailway.

 

     (xxxvii) Section 76105, permit for exploration or excavation of

 

aboriginal remains.

 

     (xxxviii) (xxxvii) Section 76109, sunken aircraft or watercraft

 

abandoned property recovery permit.

 

     (xxxix) (xxxviii) Section 76504, Mackinac Island motor vehicle and

 

land use permits.

 

     (xxxx) (xxxix) Section 80159, buoy or beacon permit.

 

     (e) "Processing deadline" means the last day of the processing

 

period.

 

     (f) "Processing period" means the following time period after

 

the close of the application period, for the following permit, as

 

applicable:

 

     (i) Twenty days for a permit under section 61525 or 62509.

 

     (ii) Thirty days for a permit under section 9112.

 

     (iii) Thirty days after the department consults with the

 

underwater salvage and preserve committee created under section

 

76103, for a permit under section 76109.

 

     (iv) Sixty days, for a permit under section 30104 for a minor

 

project as established by rule under section 30105(7) or for a

 

permit under section 32312.

 

     (v) Sixty days or, if a hearing is held, 90 days for a permit

 

under section 35304.

 

     (vi) Sixty days or, if a hearing is held, 120 days for a permit

 

under section 30104, other than a permit for a minor project as

 

established by rule under section 30105(7), or for a permit under

 

section 31509.

 

     (vii) Ninety days for a permit under section 11512, a revision

 

of a surface coal mining and reclamation permit during the term of

 

the permit under section 63525, or a permit under section 72108.

 

     (viii) Ninety days or, if a hearing is held, 150 days for a

 

permit under section 3104, 30304, or 32503 32512 or an

 

authorization for a specific project to proceed under a general

 

permit issued under section 30312.

 

     (ix) One hundred and twenty days for a permit under section

 

11509, 11542, 63103a, 63514, or 63704.

 

     (x) One hundred fifty days for a permit under section 36505.

 

However, if a site inspection or federal approval is required, the

 

150-day period is tolled pending completion of the inspection or

 

receipt of the federal approval.

 

     (xi) For any other permit, 150 days or, if a hearing is held,

 

90 days after the hearing, whichever is later.

 

     Sec. 32501. As used in this part:

 

     (a) "Beach" means the area landward of the shoreline of the

 

Great Lakes as the term shoreline is defined in section 32301.

 

     (b) "Beach maintenance activities" means any of the following

 

in the area of Great Lakes bottomlands lying below the ordinary

 

high-water mark and above the water's edge:

 

     (i) Manual or mechanized leveling of sand.

 

     (ii) Mowing of vegetation.

 

     (iii) Manual de minimis removal of vegetation.

 

     (iv) Grooming of soil.

 

     (v) Construction and maintenance of a path.

 

     (c) "Debris" means animal or fish carcasses, zebra mussel

 

shells, dead vegetation, trash, and discarded materials of human-

 

made origin.

 

     (a) (d) "Department" means the department of environmental

 

quality.

 

     (b) (e) "Director" means the director of the department.

 

     (c) (f) "Environmental area" means an environmental area as

 

defined in section 32301.

 

     (g) "Grooming of soil" means raking or dragging, pushing, or

 

pulling metal teeth through the top 4 inches of soil without

 

disturbance of or destruction to plant roots, for the purpose of

 

removing debris.

 

     (h) "Leveling of sand" means the relocation of sand within

 

areas being leveled that are predominantly free of vegetation,

 

including the redistribution, grading, and spreading of sand that

 

has been deposited through wind or wave action onto upland riparian

 

property.

 

     (d) (i) "Marina purposes" means an operation making use of

 

submerged bottomlands or filled-in bottomlands of the Great Lakes

 

for the purpose of service to boat owners or operators, which

 

operation may restrict or prevent the free public use of the

 

affected bottomlands or filled-in lands.

 

     (e) (j) "Mowing of vegetation" means the cutting of vegetation

 

to a height of not less than 2 inches, without disturbance of soil

 

or plant roots.

 

     (k) "Path" means a temporary access walkway from the upland

 

riparian property directly to the shoreline across swales with

 

standing water, not exceeding 6 feet in bottom width and consisting

 

of sand and pebbles obtained from the exposed, nonvegetated

 

bottomlands or from the upland riparian property.

 

     (f) "Recreational diving structure" means any of the

 

following:

 

     (i) A vessel.

 

     (ii) An aircraft.

 

     (iii) An artifact of maritime history other than a vessel or

 

aircraft.

 

     (iv) An artifact or other structure that may be used for

 

recreational scuba diving that will enhance habitat for sport fish

 

species and promote underwater recreation.

 

     (g) (l) "Removal of vegetation" means the manual or mechanized

 

removal of vegetation other than the de minimis removal of

 

vegetation.

 

     (h) (m) "Wetland" means that term as it is defined in section

 

30301.

 

     Sec. 32503. (1) Except as otherwise provided in this section,

 

the department, after finding that the public trust in the waters

 

will not be impaired or substantially affected, may enter into

 

agreements pertaining to waters over and the filling in of

 

submerged patented lands, or to lease or deed unpatented lands,

 

after approval of the state administrative board. Quitclaim deeds,

 

leases, or agreements covering unpatented lands may be issued or

 

entered into by the department with any person, and shall contain

 

such terms, conditions, and requirements as the department

 

determines to be just and equitable and in conformance with the

 

public trust. The department shall reserve to the state all mineral

 

rights, including, but not limited to, coal, oil, gas, sand,

 

gravel, stone, and other materials or products located or found in

 

those lands, except where lands are occupied or to be occupied for

 

residential purposes at the time of conveyance.

 

     (2) A riparian owner shall not dredge or place spoil or other

 

materials on bottomland except as authorized by a permit issued by

 

the department pursuant to part 13.

 

     (2) (3) The department shall not enter into a lease or deed

 

that allows drilling operations beneath unpatented lands for the

 

exploration or production of oil or gas.

 

     (3) (4) An agreement, lease, or deed entered into under this

 

part by the department with the United States shall be entered into

 

and executed pursuant to the property rights acquisition act, 1986

 

PA 201, MCL 3.251 to 3.262.

 

     Sec. 32512. (1) Unless a permit has been granted issued by the

 

department pursuant to part 13 or authorization has been granted by

 

the legislature, or except as to boat wells and slips facilitating

 

private, noncommercial, recreational boat use, not exceeding 50

 

feet in length where the spoil is not disposed of below the

 

ordinary high-water mark of the body of water to which it is

 

connected, a person shall not do any of the following:

 

     (a) Construct, dredge, commence, or do any work with respect

 

to an artificial canal, channel, ditch, lagoon, pond, lake, or

 

similar waterway where the purpose is ultimate connection of the

 

waterway with any of the Great Lakes, including Lake St. Clair.

 

     (b) Connect any natural or artificially constructed waterway,

 

canal, channel, ditch, lagoon, pond, lake, or similar waterway with

 

any of the Great Lakes, including Lake St. Clair, for navigation or

 

any other purpose.

 

     (c) Dredge or place spoil or other material, including a

 

recreational diving structure, on bottomland.

 

     (d) Construct a marina.

 

     (2) Notwithstanding subsection (1), and with respect to lands

 

covered and affected by this part, a permit or other approval is

 

not required under this part for either of the following:

 

     (a) Until November 1, 2007, beach maintenance activities that

 

meet all of the following conditions:

 

     (i) The activities shall not occur in environmental areas and

 

shall not violate part 365 or rules promulgated under that part, or

 

the endangered species act of 1973, Public Law 93-205, 87 Stat.

 

884, or rules promulgated under that act.

 

     (ii) The width of any mowing of vegetation shall not exceed the

 

width of the riparian property or 100 feet, whichever is less.

 

     (iii) All collected debris shall be disposed of properly outside

 

of any wetland.

 

     (b) Until 3 years after the effective date of the amendatory

 

act that added this subdivision, removal of vegetation as

 

authorized in section 32516.

 

     Sec. 32512b. (1) A person who wishes to place a recreational

 

diving structure on bottomlands may submit an application to the

 

department.

 

     (2) The department shall grant a permit under section 32512 to

 

place a recreational diving structure on bottomland if the

 

department determines all of the following:

 

     (a) The recreational diving structure has been decommissioned,

 

as applicable, in compliance with best practices described in the

 

document entitled "National Guidance: Best Management Practices for

 

Preparing Vessels Intended to Create Artificial Reefs" published by

 

the United States environmental protection agency and the United

 

States maritime administration, dated May 2006, or other practices

 

as determined by the department.

 

     (b) The recreational diving structure is suitable or will be

 

made suitable for recreational scuba diving.

 

     (c) The public trust will not be impaired or substantially

 

injured by the placement of the recreational diving structure on

 

bottomlands.

 

     (d) The location of the proposed placement of the recreational

 

diving structure will provide opportunities for recreational scuba

 

diving or glass bottom boat tours, or both.

 

     (e) If the recreational diving structure is proposed to be

 

placed within a Great Lakes bottomlands preserve established under

 

part 761, the underwater salvage and preserve committee established

 

in section 76103 has determined that the placement of the

 

recreational diving structure is consistent with the preservation

 

and use of the Great Lakes bottomland preserve.

 

     (f) The placement of the recreational diving structure will

 

not cause negative impacts to aquatic species.

 

     (g) The applicant agrees to reasonable conditions of the

 

department related to the transport and sinking of the recreational

 

diving structure.

 

     (h) The applicant will transfer ownership and relinquish all

 

rights associated with the recreational diving structure to the

 

state upon placement of the recreational diving structure on

 

bottomlands.

 

     Sec. 76101. As used in this part:

 

     (a) "Abandoned property" means an aircraft; a watercraft,

 

including a ship, boat, canoe, skiff, raft, or barge; the rigging,

 

gear, fittings, trappings, and equipment of an aircraft or

 

watercraft; the personal property of the officers, crew, and

 

passengers of an aircraft or watercraft; and the cargo of an

 

aircraft or watercraft, which have been deserted, relinquished,

 

cast away, or left behind and for which attempts at reclamation

 

have been abandoned by owners and insurers. Abandoned property also

 

means materials resulting from activities of historic and

 

prehistoric Native Americans.

 

     (b) "Bottomlands" means the unpatented lake bottomlands of the

 

Great Lakes.

 

     (c) "Committee" means the underwater salvage and preserve

 

committee created in section 76103.

 

     (d) "Great Lakes" means lakes Erie, Huron, Michigan, St.

 

Clair, and Superior.

 

     (e) "Great Lakes bottomlands preserve" means an area located

 

on the bottomlands of the Great Lakes and extending upward to and

 

including the surface of the water, which is delineated and set

 

aside by rule for special protection of abandoned property of

 

historical value, or ecological, educational, geological, or scenic

 

features or formations having recreational, educational, or

 

scientific value. A preserve may encompass a single object,

 

feature, or formation, or a collection of several objects,

 

features, or formations.

 

     (f) "Historical value" means value relating to, or

 

illustrative of, Michigan history, including the statehood,

 

territorial, colonial, and historic, and prehistoric native

 

American periods.

 

     (g) "Mechanical or other assistance" means all humanmade

 

devices, including pry bars, wrenches and other hand or power

 

tools, cutting torches, explosives, winches, flotation bags, lines

 

to surface, extra divers buoyancy devices, and other buoyance

 

devices, used to raise or remove artifacts.

 

     (h) "Recreational diving structure" means that term as it is

 

defined in section 32501.

 

     (i) (h) "Recreational value" means value relating to an

 

activity that the public engages in, or may engage in, for

 

recreation or sport, including scuba diving and fishing.

 

     Sec. 76102. (1) The state reserves to itself the exclusive

 

right and privilege, except as provided in this part, of exploring,

 

surveying, excavating, and regulating through its authorized

 

officers, agents, and employees, all aboriginal records and other

 

antiquities, including mounds, earthworks, forts, burial and

 

village sites, mines or other relics, and abandoned property of

 

historical or recreational value found upon or within any of the

 

lands owned by or under the control of the state.

 

     (2) The state reserves to itself a possessory right or title

 

superior to that of a finder to abandoned property of historical or

 

recreational value found on the state owned bottomlands of the

 

Great Lakes. This property shall belong to this state with

 

administration and protection jointly vested in the department. and

 

the department of history, arts, and libraries.

 

     Sec. 76103. (1) The underwater salvage and preserve committee

 

is created in the department to provide technical and other advice

 

to the department and the department of history, arts, and

 

libraries with respect to their its responsibilities under this

 

part.

 

     (2) The underwater salvage and preserve committee shall

 

consist of 9 members appointed as follows:

 

     (a) Two individuals appointed by the department who have

 

primary responsibility in the department for administering this

 

part.

 

     (b) Two individuals appointed by the director of the

 

department of history, arts, and libraries who have primary

 

responsibility in the department of history, arts, and libraries

 

for administering this part.

 

     (b) One individual appointed by travel Michigan.

 

     (c) One individual appointed by the director of the department

 

of environmental quality.

 

     (d) (c) Five individuals appointed by the governor with the

 

advice and consent of the senate from the general public. Two of

 

these individuals shall have experience in recreational scuba

 

diving.

 

     (3) An individual appointed to the committee shall serve for a

 

term of 3 years. A vacancy on the committee shall be filled in the

 

same manner as an original appointment and the term of a member

 

appointed to fill a vacancy shall be for 3 years. Members of the

 

committee shall serve without compensation, except for their

 

regular state salary where applicable.

 

     (4) The chairperson of the committee shall alternate between

 

the representatives from the department and the department of

 

history, arts, and libraries. The chairperson shall be designated

 

by the department or the director of the department of history,

 

arts, and libraries, whichever is applicable from among his or her

 

its representatives on the committee. The chairperson's term shall

 

run for 12 months, from October 1 through September 30. The

 

department shall appoint the first chairperson of the committee for

 

a term ending September 30, 1989. The chairperson shall call

 

meetings as necessary but not less than 4 times per year, set the

 

agenda for meetings, ensure that adequate minutes are taken, and

 

file an annual report of committee proceedings with the head of the

 

department of natural resources and the director. of the department

 

of history, arts, and libraries.

 

     (5) The committee is an advisory body and may perform all of

 

the following functions:

 

     (a) Make recommendations with regard to the creation and

 

boundaries of Great Lakes underwater preserves.

 

     (b) Review applications for underwater salvage permits and

 

make recommendations regarding issuance.

 

     (c) Consider and make recommendations regarding the charging

 

of permit fees and the appropriate use of revenue generated by

 

those fees.

 

     (d) Consider the need for and the content of rules intended to

 

implement this part and make recommendations concerning the

 

promulgation of rules.

 

     (e) Consider and make recommendations concerning appropriate

 

legislation.

 

     (f) Consider and make recommendations concerning program

 

operation.

 

     (6) The committee shall not replace or supersede the

 

responsibility or authority of the department of history, arts, and

 

libraries or the department to carry out their its responsibilities

 

under this part.

 

     Sec. 76104. A deed, as provided by this part, given by this

 

state, except state tax deeds for the conveyance of any land owned

 

by the state, shall contain a clause reserving to this state a

 

property right in aboriginal antiquities including mounds,

 

earthworks, forts, burial and village sites, mines, or other relics

 

and also reserving the right to explore and excavate for the

 

aboriginal antiquity by and through this state's authorized agent

 

and employee. This section applies only to the sale of tax reverted

 

land. The department , with the approval of the department of

 

history, arts, and libraries, may waive this reservation when

 

conveying platted property and when making conveyances under

 

subpart 3 of part 21.

 

     Sec. 76105. (1) A person, either personally or through an

 

agent or employee, shall not explore or excavate an aboriginal

 

remain covered by this part upon lands owned by the state, except

 

as authorized by a permit issued by the department , with written

 

approval of the department of history, arts, and libraries,

 

pursuant to part 13. A permit shall be issued without charge.

 

     (2) Subsection (1) does not apply to the Mackinac Island state

 

park commission on lands owned or controlled by the Mackinac Island

 

state park commission.

 

     Sec. 76107. (1) Except as provided in section 76108, a person

 

shall not recover, alter, or destroy abandoned property which is

 

in, on, under, or over the bottomlands of the Great Lakes,

 

including those within a Great Lakes bottomlands preserve, unless

 

the person has a permit issued jointly by the department of

 

history, arts, and libraries and the department under section

 

76109.

 

     (2) A person who recovers abandoned property without a permit

 

when a permit is required by this part shall transmit the property

 

to the department, of history, arts, and libraries and the

 

recovered property shall be the property of the department. of

 

history, arts, and libraries.

 

     (3) A person shall not remove, convey, mutilate, or deface a

 

human body or the remains of a human body located on the

 

bottomlands of the Great Lakes. This subsection does not apply to a

 

person who removes or conveys a human body or the remains of a

 

human body pursuant to a court order, pursuant to the written

 

consent of the decedent's next of kin if the decedent's death

 

occurred less than 100 years before the removal or conveying, or to

 

a person who removes or conveys the body for law enforcement,

 

medical, archaeological, or scientific purposes. A person who

 

violates this subsection is guilty of a felony punishable by

 

imprisonment for not more than 10 years or a fine of not more than

 

$5,000.00, or both.

 

     (4) A person who violates subsection (1) is guilty of a crime

 

as follows:

 

     (a) If the value of the property is less than $200.00, the

 

person is guilty of a misdemeanor punishable by imprisonment for

 

not more than 93 days or a fine of not more than $500.00, or 3

 

times the aggregate value of the property involved, whichever is

 

greater, or both imprisonment and a fine.

 

     (b) If any of the following apply, the person is guilty of a

 

misdemeanor punishable by imprisonment for not more than 1 year or

 

a fine of not more than $2,000.00 or 3 times the value of the

 

property involved, whichever is greater, or both imprisonment and a

 

fine:

 

     (i) The value of the property involved is $200.00 or more but

 

less than $1,000.00.

 

     (ii) The person violates subdivision (a) and has 1 or more

 

prior convictions for committing or attempting to commit an offense

 

under this section.

 

     (c) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 5 years or a

 

fine of not more than $10,000.00 or 3 times the value of the

 

property involved, whichever is greater, or both imprisonment and a

 

fine:

 

     (i) The value of the property involved is $1,000.00 or more but

 

less than $20,000.00.

 

     (ii) The person violates subdivision (b)(i) and has 1 or more

 

prior convictions for violating or attempting to violate this

 

section. For purposes of this subparagraph, however, a prior

 

conviction does not include a conviction for a violation or

 

attempted violation of subdivision (a) or (b)(ii).

 

     (d) If any of the following apply, the person is guilty of a

 

felony punishable by imprisonment for not more than 10 years or a

 

fine of not more than $15,000.00 or 3 times the value of the

 

property involved, whichever is greater, or both imprisonment and a

 

fine:

 

     (i) The property involved has a value of $20,000.00 or more.

 

     (ii) The person violates subdivision (c)(i) and has 2 or more

 

prior convictions for committing or attempting to commit an offense

 

under this section. For purposes of this subparagraph, however, a

 

prior conviction does not include a conviction for a violation or

 

attempted violation of subdivision (a) or (b)(ii).

 

     (5) The values of property recovered or destroyed in separate

 

incidents pursuant to a scheme or course of conduct within any 12-

 

month period may be aggregated to determine the total value of the

 

property recovered or destroyed.

 

     (6) If the prosecuting attorney intends to seek an enhanced

 

sentence based upon the defendant having 1 or more prior

 

convictions, the prosecuting attorney shall include on the

 

complaint and information a statement listing the prior conviction

 

or convictions. The existence of the defendant's prior conviction

 

or convictions shall be determined by the court, without a jury, at

 

sentencing or at a separate hearing for that purpose before

 

sentencing. The existence of a prior conviction may be established

 

by any evidence relevant for that purpose, including, but not

 

limited to, 1 or more of the following:

 

     (a) A copy of the judgment of conviction.

 

     (b) A transcript of a prior trial, plea-taking, or sentencing.

 

     (c) Information contained in a presentence report.

 

     (d) The defendant's statement.

 

     (7) If the sentence for a conviction under this section is

 

enhanced by 1 or more prior convictions, those prior convictions

 

shall not be used to further enhance the sentence for the

 

conviction pursuant to section 10, 11, or 12 of chapter IX of the

 

code of criminal procedure, 1927 PA 175, MCL 769.10, 769.11, and

 

769.12.

 

     Sec. 76108. (1) A person may recover abandoned property

 

outside a Great Lakes bottomlands preserve without a permit if the

 

abandoned property is not attached to, nor located on, in, or

 

located in the immediate vicinity of and associated with a sunken

 

aircraft or watercraft or other recreational diving structure and

 

if the abandoned property is recoverable by hand without mechanical

 

or other assistance.

 

     (2) A person who recovers abandoned property valued at more

 

than $10.00 without a permit pursuant to subsection (1) shall file

 

a written report within 30 days after removal of the property with

 

the department or the department of history, arts, and libraries if

 

the property has been abandoned for more than 30 years. The written

 

report shall list all recovered property that has been abandoned

 

for more than 30 years and the location of the property at the time

 

of recovery. For a period of 90 days after the report is filed, the

 

person shall make the recovered property available to the

 

department and the department of history, arts, and libraries for

 

inspection at a location in this state. If the department of

 

history, arts, and libraries determines that the recovered property

 

does not have historical value, the department of history, arts,

 

and libraries shall release the property to the person by means of

 

a written instrument.

 

     Sec. 76109. (1) A person shall not recover abandoned property

 

located on, in, or located in the immediate vicinity of and

 

associated with a sunken aircraft or watercraft or other

 

recreational diving structure except as authorized by a permit

 

issued by the department and the department of history, arts, and

 

libraries pursuant to part 13.

 

     (2) Notwithstanding section 1303(1), a person shall file an

 

application for a permit with the department on a form prescribed

 

by the department. and approved by the department of history, arts,

 

and libraries. The application shall contain all of the following

 

information:

 

     (a) The name and address of the applicant.

 

     (b) The name, if known, of the watercraft or aircraft or other

 

recreational diving structure on or around which recovery

 

operations are to occur and a current photograph or drawing of the

 

watercraft or aircraft or other recreational diving structure, if

 

available.

 

     (c) The location of the abandoned property to be recovered and

 

the depth of water in which it may be found.

 

     (d) A description of each item to be recovered.

 

     (e) The method to be used in recovery operations.

 

     (f) The proposed disposition of the abandoned property

 

recovered, including the location at which it will be available for

 

inspection by the department. and the department of history, arts,

 

and libraries.

 

     (g) Other information which that the department or the

 

department of history, arts, and libraries considers necessary in

 

evaluating the request for a permit.

 

     (3) An application for a permit is not complete until all

 

information requested on the application form and any other

 

information requested by the department or the department of

 

history, arts, and libraries has been received by the department.

 

After receipt of an otherwise complete application, the department

 

may request additional information or documents as are determined

 

to be necessary to make a decision to grant or deny a permit.

 

     (4) The department and the department of history, arts, and

 

libraries shall approve or deny an application for a permit with

 

the advice of the committee. A condition to the approval of an

 

application shall be in writing on the face of the permit. The

 

department and the department of history, arts, and libraries may

 

impose such conditions as are considered reasonable and necessary

 

to protect the public trust and general interests, including

 

conditions that accomplish 1 or more of the following:

 

     (a) Protect and preserve the abandoned property to be

 

recovered , and the recreational value of the area in which

 

recovery is being accomplished.

 

     (b) Assure reasonable public access to the abandoned property

 

after recovery.

 

     (c) Conform with rules applying to activities within a Great

 

Lakes bottomlands preserve.

 

     (d) Prohibit injury, harm, and damage to a bottomlands site or

 

abandoned property not authorized for removal during and after

 

salvage operations by the permit holder.

 

     (e) Prohibit or limit the amount of discharge of possible

 

pollutants, such as floating timbers, planking, and other debris,

 

which may emanate from the shipwreck, plane wreck, or salvage

 

equipment.

 

     (f) Require the permit holder to submit a specific removal

 

plan prior to commencing any salvaging activities. Among other

 

matters considered appropriate by either the department, or the

 

department of history, arts, and libraries, or both, the removal

 

plan may be required to ensure the safety of those removing or

 

assisting in the removal of the abandoned property and to address

 

how the permit holder proposes to prevent, minimize, or mitigate

 

potential adverse effects upon the abandoned property to be

 

removed, that portion of the abandoned property which is not to be

 

removed, and the surrounding geographic features.

 

     (5) The department shall approve an application for a permit

 

unless the department determines that the abandoned property to be

 

recovered has substantial recreational value in itself or in

 

conjunction with other abandoned property in its vicinity

 

underwater, or the recovery of abandoned property would not comply

 

with rules applying to a Great Lakes bottomlands preserve.

 

     (6) The department of history, arts, and libraries shall

 

approve the application for a permit unless the department of

 

history, arts, and libraries determines that the abandoned property

 

to be recovered has substantial historical value in itself or in

 

conjunction with other abandoned property in its vicinity. If the

 

abandoned property has substantial historical value, the

 

department, of history, arts, and libraries, pursuant to subsection

 

(4), may impose a condition on the permit requiring the permittee

 

to turn over recovered property to the department of history, arts,

 

and libraries for the purpose of preserving the property or

 

permitting public access to the property. The department of

 

history, arts, and libraries may authorize the display of the

 

property in a public or private museum or by a local unit of

 

government. In addition to the conditions authorized by subsection

 

(4), the department of history, arts, and libraries may provide for

 

payment of salvage costs in connection with the recovery of the

 

abandoned property.

 

     (7) A person shall not recover cargo situated on, in, or

 

associated with an abandoned watercraft that is located outside of

 

a Great Lakes bottomlands preserve except as authorized by a permit

 

issued pursuant to this section and part 13. Subject to subsection

 

(4), the permit shall be issued to the first person applying for

 

the permit. However, only the person who discovered the abandoned

 

watercraft may apply for a permit during the first 90 days after

 

the discovery. When a watercraft containing cargo is simultaneously

 

discovered by more than 1 person, a permit shall be approved with

 

respect to the first person or persons jointly applying for a

 

permit.

 

     (8) A person aggrieved by a condition contained on a permit or

 

by the denial of an application for a permit may request an

 

administrative review of the condition or the denial by the

 

commission or the department. of history, arts, and libraries,

 

whichever disapproves the application or imposes the condition. A

 

person shall file the request for review with the commission or the

 

department of history, arts, and libraries, whichever is

 

applicable, within 90 days after the permit application is

 

submitted to the department. An administrative hearing conducted

 

pursuant to this subsection shall be conducted under the procedures

 

set forth in chapter 4 of the administrative procedures act of

 

1969, 1969 PA 306, MCL 24.271 to 24.287. If neither the department

 

nor the department of history, arts, and libraries approves the

 

application and an administrative review is requested from both the

 

commission and the department of history, arts, and libraries, the

 

appeals shall be combined upon request of the appellant or either

 

the commission or the department of history, arts, and libraries

 

and a single administrative hearing shall be conducted. The

 

commission and Following the administrative hearing, the department

 

of history, arts, and libraries shall issue jointly the final

 

decision and order in the case.

 

     (9) A permit issued under this section is valid until December

 

31 of the year in which the application for the permit was filed

 

and is not renewable. If an item designated in a permit for

 

recovery is not recovered, a permit holder may, upon request

 

following the expiration of the permit, be issued a new permit to

 

remove the same abandoned property if the permit holder

 

demonstrates that diligence in attempting recovery was exercised

 

under the previously issued permit.

 

     (10) A permit issued under this section shall not be

 

transferred or assigned unless the assignment is approved in

 

writing by both the department. and the department of history,

 

arts, and libraries.

 

     Sec. 76110. (1) Within 10 days after recovery of abandoned

 

property, a person with a permit issued pursuant to section 76109

 

shall report the recovery in writing to the department. The person

 

recovering the abandoned property shall give authorized

 

representatives of the department and the department of history,

 

arts, and libraries an opportunity to examine the abandoned

 

property for a period of 90 days after recovery. Recovered

 

abandoned property shall not be removed from this state without

 

written approval of the department. and the department of history,

 

arts, and libraries. If the recovered abandoned property is removed

 

from the state without written approval, the attorney general, upon

 

request from the department, or the department of history, arts,

 

and libraries, shall bring an action for the recovery of the

 

property.

 

     (2) If the department of history, arts, and libraries

 

determines that the recovered abandoned property does not have

 

historical value, the department of history, arts, and libraries

 

shall release the property to the person holding the permit by

 

means of a written instrument.

 

     Sec. 76111. (1) Subject to subsection (7), the department of

 

environmental quality shall establish Great Lakes bottomlands

 

preserves by rule. A Great Lakes bottomlands preserve shall be

 

established by emergency rule if it is determined by the department

 

that this action is necessary to immediately protect an object or

 

area of historical or recreational value.

 

     (2) A Great Lakes bottomlands preserve may be established

 

whenever a bottomlands area includes a single watercraft of

 

significant historical value, includes 2 or more abandoned

 

watercraft, or contains other features of archaeological,

 

historical, recreational, geological, or environmental

 

significance. Bottomlands areas containing few or no watercraft or

 

other features directly related to the character of a preserve may

 

be excluded from preserves.

 

     (3) In establishing a Great Lakes bottomlands preserve, the

 

department of environmental quality shall consider all of the

 

following factors:

 

     (a) Whether creating the preserve is necessary to protect

 

either abandoned property possessing historical or recreational

 

value, or significant underwater geological or environmental

 

features.

 

     (b) The extent of local public and private support for

 

creation of the preserve.

 

     (c) Whether a preserve development plan has been prepared by a

 

state or local agency.

 

     (d) The extent to which preserve support facilities such as

 

roads, marinas, charter services, hotels, medical hyperbaric

 

facilities, and rescue agencies have been developed in or are

 

planned for the area.

 

     (4) The department of environmental quality and the department

 

of history, arts, and libraries shall not grant a permit to recover

 

abandoned artifacts within a Great Lakes bottomlands preserve

 

except for historical or scientific purposes or when the recovery

 

will not adversely affect the historical, cultural, or recreational

 

integrity of the preserve area as a whole.

 

     (5) An individual Great Lakes bottomlands preserve shall not

 

exceed 400 square miles in area. Great Lakes bottomlands preserves

 

shall be limited in total area to not more than 10% of the Great

 

Lakes bottomlands within this state. However, the limitations

 

provided in this subsection do not apply to the Thunder Bay Great

 

Lakes bottomland preserve established in subsection (7).

 

     (6) Upon the approval of the committee, not more than 1 vessel

 

associated with Great Lakes maritime history recreational diving

 

structures may be sunk intentionally within a Great Lakes

 

bottomlands preserve if a permit is obtained under section 32512b.

 

However, state money shall not be expended to purchase, transport,

 

or sink the vessel.

 

     (7) The Thunder Bay Great Lakes state bottomland preserve

 

established under R 299.6001 of the Michigan administrative code

 

shall have boundaries identical with those described in 15 C.F.R.

 

CFR 922.190 for the Thunder Bay national marine sanctuary and

 

underwater preserve. As long as the Thunder Bay national marine

 

sanctuary and underwater preserve remains a designated national

 

marine sanctuary, the right and privilege to explore, survey,

 

excavate, and regulate abandoned property of historical or

 

recreational value found upon or within the lands owned by or under

 

control of the state within those boundaries shall be jointly

 

managed and regulated by the department of environmental quality

 

and the national oceanic and atmospheric administration. However,

 

this subsection shall not be construed to convey any ownership

 

right or interest from the state to the federal government of

 

abandoned property of historical or recreational value found upon

 

or within the lands owned by or under control of the state.

 

     Sec. 76112. (1) The department and the department of history,

 

arts, and libraries, jointly or separately, may promulgate rules as

 

are necessary to implement this part.

 

     (2) Within each Great Lakes bottomlands preserve, the The

 

department and the department of history, arts, and libraries may

 

jointly promulgate rules that govern access to and use of a Great

 

Lakes bottomlands preserve. These rules may regulate or prohibit

 

the alteration, destruction, or removal of abandoned property,

 

features, or formations within a preserve.

 

     Sec. 76112a. The department, in conjunction with travel

 

Michigan, shall do all of the following:

 

     (a) Publicize and promote the use of Great Lakes bottomlands

 

preserves.

 

     (b) Publicize and promote recreational scuba diving in the

 

Great Lakes.

 

     (c) Upon the sinking of recreational diving structures in the

 

Great Lakes, publicize and promote recreational scuba diving

 

opportunities associated with recreational diving structures.

 

     Sec. 76113. Sections 76107 to 76110 shall not be considered to

 

impose the following limitations:

 

     (a) A limitation on the right of a person to engage in diving

 

for recreational purposes in and upon the Great Lakes or the

 

bottomlands of the Great Lakes.

 

     (b) A limitation on the right of the department or the

 

department of history, arts, and libraries to recover, or to

 

contract for the recovery of, abandoned property in and upon the

 

bottomlands of the Great Lakes.

 

     (c) A limitation on the right of a person to own either

 

abandoned property recovered before July 2, 1980 or abandoned

 

property released to a person after inspection.

 

     Sec. 76114. (1) If the department or the department of

 

history, arts, and libraries finds that the holder of a permit

 

issued pursuant to section 76105 or 76109 is not in compliance with

 

this part, a rule promulgated under this part, or a provision of or

 

condition in the permit, or has damaged abandoned property or

 

failed to use diligence in attempting to recover property for which

 

a permit was issued, the department or the department of history,

 

arts, and libraries, individually or jointly, may summarily suspend

 

or revoke the permit. If the permit holder requests a hearing

 

within 15 days following the effective date of the suspension or

 

revocation, the commission or the department of history, arts, and

 

libraries shall conduct an administrative hearing pursuant to

 

chapter 4 of the administrative procedures act of 1969, 1969 PA

 

306, MCL 24.271 to 24.287, to consider whether the permit should be

 

reinstated.

 

     (2) The attorney general, on behalf of the department, or the

 

department of history, arts, and libraries, individually or

 

jointly, may commence a civil action in circuit court to enforce

 

compliance with this part, to restrain a violation of this part or

 

any action contrary to a decision denying a permit, to enjoin the

 

further removal of artifacts, geological material, or abandoned

 

property, or to order the restoration of an affected area to its

 

prior condition.

 

     Sec. 76115. Each person who participates in the sport of scuba

 

diving on the Great Lakes bottomlands accepts the dangers that

 

adhere inhere in that sport insofar as the dangers are obvious and

 

necessary. Those dangers include, but are not limited to, injuries

 

which can result from entanglements in sunken watercraft or

 

aircraft or other recreational diving structures; the condition of

 

sunken watercraft or aircraft or other recreational diving

 

structures; the location of sunken watercraft or aircraft or other

 

recreational diving structures; the failure of the state to fund

 

staff or programs at bottomlands preserves; and the depth of the

 

objects and bottomlands within preserves.

 

     Sec. 76118. (1) The underwater preserve fund is created as a

 

separate fund in the state treasury, and it may receive revenue as

 

provided in this part , or revenue from any other source.

 

     (2) Money in the underwater preserve fund shall be

 

appropriated to the department for only the following purposes:

 

     (a) To the department of history, arts, and libraries for the

 

The development of maritime archaeology in the Great Lakes.

 

     (b) The and for the promotion of Great Lakes bottomlands

 

preserves in this state.

 

     (c) The promotion of recreational scuba diving in the Great

 

Lakes.

 

     (d) (b) To the department for the The enforcement of this

 

part.