Bill Text: MI HB5655 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Natural resources; other; water withdrawal; modify definition of "consumptive use". Amends sec. 32701 of 1994 PA 451 (MCL 324.32701).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-02-28 - Bill Electronically Reproduced 02/27/2018 [HB5655 Detail]

Download: Michigan-2017-HB5655-Introduced.html

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HOUSE BILL No. 5655

 

 

February 27, 2018, Introduced by Reps. Rabhi, Sabo, Neeley, Lucido, Hammoud, Elder, LaGrand, Yanez, Brinks, Sowerby and Lasinski and referred to the Committee on Natural Resources.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending section 32701 (MCL 324.32701), as amended by 2008 PA

 

179.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 32701. (1) As used in this part:

 

     (a) "Adverse resource impact" means any of the following:

 

     (i) Until February 1, 2009, decreasing the flow of a river or

 

stream by part of the index flow such that the river's or stream's

 

ability to support characteristic fish populations is functionally

 

impaired.

 

     (i) (ii) Beginning February 1, 2009, subject Subject to

 

subparagraph (vi), (v), decreasing the flow of a cold river system

 

by part of the index flow as follows:

 

     (A) For a cold stream, the withdrawal will result in a 3% or

 

more reduction in the density of thriving fish populations as

 

determined by the thriving fish curve.

 

     (B) For a cold small river, the withdrawal will result in a 1%

 

or more reduction in the density of thriving fish populations as

 

determined by the thriving fish curve.

 

     (ii) (iii) Beginning February 1, 2009, subject Subject to

 

subparagraph (vi), (v), decreasing the flow of a cold-transitional

 

river system by part of the index flow such that the withdrawal

 

will result in a 5% or more reduction in the density of thriving

 

fish populations as determined by the thriving fish curve.

 

     (iii) (iv) Beginning February 1, 2009, subject Subject to

 

subparagraph (vi), (v), decreasing the flow of a cool river system

 

by part of the index flow as follows:

 

     (A) For a cool stream, the withdrawal will result in a 10% or

 

more reduction in the abundance of characteristic fish populations

 

as determined by the characteristic fish curve.

 

     (B) For a cool small river, the withdrawal will result in a

 

15% or more reduction in the density of thriving fish populations

 

as determined by the thriving fish curve.

 

     (C) For a cool large river, the withdrawal will result in a

 

12% or more reduction in the density of thriving fish populations

 

as determined by the thriving fish curve.

 

     (iv) (v) Beginning February 1, 2009, subject Subject to

 

subparagraph (vi), (v), decreasing the flow of a warm river system

 

by part of the index flow as follows:

 

     (A) For a warm stream, the withdrawal will result in a 5% or

 

more reduction in the abundance of characteristic fish populations

 

as determined by the characteristic fish curve.

 

     (B) For a warm small river, the withdrawal will result in a

 

10% or more reduction in the abundance of characteristic fish

 

populations as determined by the characteristic fish curve.

 

     (C) For a warm large river, the withdrawal will result in a

 

10% or more reduction in the abundance of characteristic fish

 

populations as determined by the characteristic fish curve.

 

     (v) (vi) Beginning February 1, 2009, decreasing Decreasing the

 

flow of a stream or river by more than 25% of its index flow.

 

     (vi) (vii) Decreasing the level of a lake or pond with a surface

 

area of 5 acres or more through a direct withdrawal from the lake

 

or pond in a manner that would impair or destroy the lake or pond

 

or the uses made of the lake or pond, including the ability of the

 

lake or pond to support characteristic fish populations, or such

 

that the ability of the lake or pond to support characteristic fish

 

populations is functionally impaired. As used in this subparagraph,

 

lake or pond does not include a retention pond or other

 

artificially created surface water body.

 

     (b) "Agricultural purpose" means the agricultural production

 

of plants and animals useful to human beings and includes, but is

 

not limited to, forages and sod crops, grains and feed crops, field

 

crops, dairy animals and dairy products, poultry and poultry

 

products, cervidae, livestock, including breeding and grazing,

 

equine, fish and other aquacultural products, bees and bee

 

products, berries, herbs, fruits, vegetables, flowers, seeds,

 

grasses, nursery stock, trees and tree products, mushrooms, and

 

other similar products, or any other product, as determined by the

 

commission of agriculture and rural development, that incorporates

 

the use of food, feed, fiber, or fur.

 

     (c) "Assessment tool" means the water withdrawal assessment

 

tool provided for in section 32706a.

 

     (d) "Baseline capacity", subject to subsection (2), means any

 

of the following, which shall be considered the existing withdrawal

 

approval amount under section 4.12.2 of the compact:

 

     (i) The following applicable withdrawal capacity as reported to

 

the department or the department of agriculture and rural

 

development, as appropriate, by the person making the withdrawal in

 

the annual report submitted under section 32707 not later than

 

April 1, 2009 or in the water use conservation plan submitted under

 

section 32708 not later than April 1, 2009:

 

     (A) Unless reported under a different provision of this

 

subparagraph, for a quarry or mine that holds an authorization to

 

discharge under part 31 that includes a discharge volume, the

 

discharge volume stated in that authorization on February 28, 2006.

 

     (B) The system capacity used or developed to make a withdrawal

 

on February 28, 2006, if the system capacity and a description of

 

the system capacity are included in an annual report that is

 

submitted under this part not later than April 1, 2009.

 

     (ii) If the person making the withdrawal does not report under

 

subparagraph (i), the highest annual amount of water withdrawn as

 

reported under this part for calendar year 2002, 2003, 2004, or

 

2005. However, for a person who is required to report by virtue of

 

the 2008 amendments to section 32705(2)(d), baseline capacity means

 

the person's withdrawal capacity as reported in the April 1, 2009

 

annual report submitted under section 32707.

 

     (iii) For a community supply, the total designed withdrawal

 

capacity for the community supply under the safe drinking water

 

act, 1976 PA 399, MCL 325.1001 to 325.1023, on February 28, 2006 as

 

reported to the department in a report submitted not later than

 

April 1, 2009.

 

     (e) "Characteristic fish curve" means a fish functional

 

response curve that describes the abundance of characteristic fish

 

populations in response to reductions in index flow as published in

 

the document entitled "Report to the Michigan Legislature in

 

response to 2006 Public Act 34" by the former groundwater

 

conservation advisory council dated July 2007, which is

 

incorporated by reference.

 

     (f) "Characteristic fish population" means the fish species,

 

including thriving fish, typically found at relatively high

 

densities in stream reaches having specific drainage area, index

 

flow, and summer temperature characteristics.

 

     (g) "Cold river system" means a stream or small river that has

 

the appropriate summer water temperature that, based on statewide

 

averages, sustains a fish community composed predominantly of cold-

 

water fish species, and where small increases in water temperature

 

will not cause a decline in these populations, as determined by a

 

scientific methodology adopted by order of the commission.

 

     (h) "Cold-transitional river system" means a stream or river

 

that has the appropriate summer water temperature that, based on

 

statewide averages, sustains a fish community composed

 

predominantly of cold-water fish species, and where small increases

 

in water temperature will cause a decline in the proportion of

 

cold-water species, as determined by a scientific methodology

 

adopted by order of the commission.

 

     (i) "Community supply" means that term as it is defined in

 

section 2 of the safe drinking water act, 1976 PA 399, MCL

 

325.1002.

 

     (j) "Compact" means the Great Lakes-St. Lawrence river River

 

basin water resources compact provided for in part 342.

 

     (k) "Consumptive use" means that portion of water withdrawn or

 

withheld from the Great Lakes basin and assumed to be lost or

 

otherwise not returned to the Great Lakes basin due to evaporation,

 

incorporation into products or agricultural products, use as part

 

of the packaging of products or agricultural products, or other

 

processes. Consumptive use includes a withdrawal of waters of the

 

Great Lakes basin that is packaged within the Great Lakes basin in

 

a container of 5.7 gallons (20 liters) or less and is bottled

 

drinking water as defined in the food code, 2005 recommendations of

 

the food and drug administration of the United States public health

 

service.

 

     (l) "Cool river system" means a stream or river that has the

 

appropriate summer water temperature that, based on statewide

 

averages, sustains a fish community composed mostly of warm-water

 

fish species, but also contains some cool-water species or cold-

 

water species, or both, as determined by a scientific methodology

 

adopted by order of the commission.

 

     (m) "Council" means the Great Lakes-St. Lawrence river River

 

basin water resources council created in the compact.

 

     (n) "Department" means the department of environmental

 

quality.

 

     (o) "Designated trout stream" means a trout stream identified

 

on the document entitled "Designated Trout Streams for the State of

 

Michigan", as issued under order of the director of the department

 

of natural resources, FO-210.04, on October 10, 2003.

 

     (p) "Diversion" means a transfer of water from the Great Lakes

 

basin into another watershed, or from the watershed of 1 of the

 

Great Lakes into that of another by any means of transfer,

 

including, but not limited to, a pipeline, canal, tunnel, aqueduct,

 

channel, modification of the direction of a water course, tanker

 

ship, tanker truck, or rail tanker but does not apply to water that

 

is used in the Great Lakes basin or a Great Lake watershed to

 

manufacture or produce a product that is then transferred out of

 

the Great Lakes basin or watershed. Diverted has a corresponding

 

meaning. Diversion includes a transfer of water withdrawn from the

 

waters of the Great Lakes basin that is removed from the Great

 

Lakes basin in a container. greater than 5.7 gallons (20 liters).

 

Diversion does not include any of the following:

 

     (i) A consumptive use.

 

     (ii) The supply of vehicles, including vessels and aircraft,

 

whether for the needs of the persons or animals being transported

 

or for ballast or other needs related to the operation of vehicles.

 

     (iii) Use in a noncommercial project on a short-term basis for

 

firefighting, humanitarian, or emergency response purposes.

 

     (iv) A transfer of water from a Great Lake watershed to the

 

watershed of its connecting waterways.

 

     (q) "Environmentally sound and economically feasible water

 

conservation measures" means those measures, methods, technologies,

 

or practices for efficient water use and for reduction of water

 

loss and waste or for reducing a withdrawal, consumptive use, or

 

diversion that meet all of the following:

 

     (i) Are environmentally sound.

 

     (ii) Reflect best practices applicable to the water use sector.

 

     (iii) Are technically feasible and available.

 

     (iv) Are economically feasible and cost-effective based on an

 

analysis that considers direct and avoided economic and

 

environmental costs.

 

     (v) Consider the particular facilities and processes involved,

 

taking into account the environmental impact, the age of equipment

 

and facilities involved, the process employed, energy impacts, and

 

other appropriate factors.

 

     (r) "Farm" means that term as it is defined in section 2 of

 

the Michigan right to farm act, 1981 PA 93, MCL 286.472.

 

     (s) "Flow-based safety factor" means a protective measure of

 

the assessment tool that reduces the portion of index flow

 

available for a withdrawal to 1/2 of the index flow for the purpose

 

of minimizing the risk of adverse resource impacts caused by

 

statistical uncertainty.

 

     (t) "Great Lakes" means Lakes Superior, Michigan and Huron,

 

Erie, and Ontario and their connecting waterways including the St.

 

Marys river, River, Lake St. Clair, the St. Clair river, River, and

 

the Detroit river. River. For purposes of this definition, Lakes

 

Huron and Michigan shall be considered a single Great Lake.

 

     (u) "Great Lakes basin" means the watershed of the Great Lakes

 

and the St. Lawrence river.River.

 

     (v) "Great Lakes charter" means the document establishing the

 

principles for the cooperative management of the Great Lakes water

 

resources, signed by the governors and premiers of the Great Lakes

 

region on February 11, 1985.

 

     (w) "Great Lakes region" means the geographic region composed

 

of the states of Illinois, Indiana, Michigan, Minnesota, New York,

 

Ohio, and Wisconsin, the commonwealth of Pennsylvania, and the

 

provinces of Ontario and Quebec, Canada.

 

     (x) "Index flow" means the 50% exceedance flow for the lowest

 

summer flow month of the flow regime, for the applicable stream

 

reach, as determined over the period of record or extrapolated from

 

analyses of the United States geological survey Geological Survey

 

flow gauges in Michigan. Beginning on October 1, 2008, index flow

 

shall be calculated as of that date.

 

     (y) "Intrabasin transfer" means a diversion of water from the

 

source watershed of a Great Lake prior to its use to the watershed

 

of another Great Lake.

 

     (z) "Lake augmentation well" means a water well used to

 

withdraw groundwater for the purpose of maintaining or raising

 

water levels of an inland lake or stream as defined in section

 

30101.

 

     (aa) "Large quantity withdrawal" means 1 or more cumulative

 

total withdrawals of over 100,000 gallons of water per day average

 

in any consecutive 30-day period that supply a common distribution

 

system.

 

     (bb) "Large river" means a river with a drainage area of 300

 

or more square miles.

 

     (cc) "New or increased large quantity withdrawal" means a new

 

water withdrawal of over 100,000 gallons of water per day average

 

in any consecutive 30-day period or an increase of over 100,000

 

gallons of water per day average in any consecutive 30-day period

 

beyond the baseline capacity of a withdrawal.

 

     (dd) "New or increased withdrawal capacity" means new or

 

additional water withdrawal capacity to supply a common

 

distribution system that is an increase from the person's baseline

 

capacity. New or increased capacity does not include maintenance or

 

replacement of existing withdrawal capacity.

 

     (ee) "Online registration process" means the online

 

registration process provided for in section 32706.

 

     (ff) "Preventative measure" means an action affecting a stream

 

or river that prevents an adverse resource impact by diminishing

 

the effect of a withdrawal on stream or river flow or the

 

temperature regime of the stream or river.

 

     (gg) "Registrant" means a person who has registered a water

 

withdrawal under section 32705.

 

     (hh) "River" means a flowing body of water with a drainage

 

area of 80 or more square miles.

 

     (ii) "Site-specific review" means the department's independent

 

review under section 32706c to determine whether the withdrawal is

 

a zone A, zone B, zone C, or zone D withdrawal and whether a

 

withdrawal is likely to cause an adverse resource impact.

 

     (jj) "Small river" means a river with a drainage area of less

 

than 300 square miles.

 

     (kk) "Source watershed" means the watershed from which a

 

withdrawal originates. If water is withdrawn directly from a Great

 

Lake, then the source watershed shall be considered to be the

 

watershed of that Great Lake and its connecting waterways. If water

 

is withdrawn from the watershed of a direct tributary to a Great

 

Lake, then the source watershed shall be considered to be the

 

watershed of that Great Lake and its connecting waterways, with a

 

preference for returning water to the watershed of the direct

 

tributary from which it was withdrawn.

 

     (ll) "Stream" means a flowing body of water with a drainage

 

area of less than 80 square miles.

 

     (mm) "Stream reach" means a segment of a stream or river.

 

     (nn) "Thriving fish curve" means a fish functional response

 

curve that describes the initial decline in density of thriving

 

fish populations in response to reductions in index flow as

 

published in the document entitled "Report to the Michigan

 

Legislature in response to 2006 Public Act 34" by the former

 

groundwater conservation advisory council dated July 2007, which is

 

incorporated by reference.

 

     (oo) "Thriving fish population" means the fish species that

 

are expected to flourish at very high densities in stream reaches

 

having specific drainage area, index flow, and summer temperature

 

characteristics.

 

     (pp) "Warm river system" means a stream or river that has the

 

appropriate summer water temperature that, based on statewide

 

averages, sustains a fish community composed predominantly of warm-

 

water fish species, as determined by a scientific methodology

 

adopted by order of the commission.

 

     (qq) "Waters of the Great Lakes basin" means the Great Lakes

 

and all streams, rivers, lakes, connecting channels, and other

 

bodies of water, including groundwater, within the Great Lakes

 

basin.

 

     (rr) "Waters of the state" means groundwater, lakes, rivers,

 

and streams and all other watercourses and waters, including the

 

Great Lakes, within the territorial boundaries of the state. Waters

 

of the state do not include drainage ways and ponds designed and

 

constructed solely for wastewater conveyance, treatment, or

 

control.

 

     (ss) "Withdrawal" means the removal of water from surface

 

water or groundwater.

 

     (tt) "Zone A withdrawal" means the following:

 

     (i) For a cold river system, as follows:

 

     (A) For a cold stream, less than a 1% reduction in the density

 

of thriving fish populations as determined by the thriving fish

 

curve.

 

     (B) For a cold small river, less than 50% of the withdrawal

 

that would result in an adverse resource impact.

 

     (ii) For a cold-transitional river system, there is not a zone

 

A withdrawal.

 

     (iii) For a cool river system, as follows:

 

     (A) For a cool stream, less than a 10% reduction in the

 

density of thriving fish populations as determined by the thriving

 

fish curve.

 

     (B) For a cool small river, less than a 5% reduction in the

 

density of thriving fish populations as determined by the thriving

 

fish curve.

 

     (C) For a cool large river, less than an 8% reduction in the

 

density of thriving fish populations as determined by the thriving

 

fish curve.

 

     (iv) For a warm river system, less than a 10% reduction in the

 

density of thriving fish populations as determined by the thriving

 

fish curve.

 

     (uu) "Zone B withdrawal" means the following:

 

     (i) There is not a zone B withdrawal for a cold stream or small

 

river.

 

     (ii) For a cold-transitional river system, less than a 5%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (iii) For a cool river system, as follows:

 

     (A) For a cool stream, a 10% or more but less than a 20%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (B) For a cool small river, a 5% or more but less than a 10%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (C) For a cool large river, an 8% or more but less than a 10%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (iv) For a warm river system, as follows:

 

     (A) For a warm stream, a 10% or more but less than a 15%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (B) For a warm small river or a warm large river, a 10% or

 

more but less than a 20% reduction in the density of thriving fish

 

populations as determined by the thriving fish curve.

 

     (vv) "Zone C withdrawal" means the following as long as the

 

withdrawal will not decrease the flow of a stream or river by more

 

than 25% of its index flow:

 

     (i) For a cold river system, as follows:

 

     (A) For a cold stream, a 1% or more but less than a 3%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (B) For a cold small river, 50% or more of the withdrawal that

 

would result in an adverse resource impact but less than a 1%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (ii) There is not a zone C withdrawal for a cold-transitional

 

river system.

 

     (iii) For a cool river system, as follows:

 

     (A) For a cool stream, a 20% or more reduction in the density

 

of thriving fish populations as determined by the thriving fish

 

curve but less than a 10% reduction in the abundance of

 

characteristic fish populations as determined by the characteristic

 

fish curve.

 

     (B) For cool small rivers, a 10% or more but less than a 15%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (C) For cool large rivers, a 10% or more but less than a 12%

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve.

 

     (iv) For warm river systems, as follows:

 

     (A) For warm streams, a 15% or more reduction in the density

 

of thriving fish populations as determined by the thriving fish

 

curve but less than a 5% reduction in the abundance of

 

characteristic fish populations as determined by the characteristic

 

fish curve.

 

     (B) For warm small rivers and warm large rivers, a 20% or more

 

reduction in the density of thriving fish populations as determined

 

by the thriving fish curve but less than a 10% reduction in the

 

abundance of characteristic fish populations as determined by the

 

characteristic fish curve.

 

     (ww) "Zone D withdrawal" means , beginning February 1, 2009, a

 

withdrawal that is likely to cause an adverse resource impact.

 

     (2) For purposes of determining baseline capacity, a person

 

who replaces his or her surface water withdrawal capacity with the

 

same amount of groundwater withdrawal capacity from the drainage

 

area of the same stream reach may retain the baseline capacity

 

established under this section.