Bill Text: MI SB0444 | 2013-2014 | 97th Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Natural resources; nonnative species; permit process for treatment of aquatic invasive species; revise. Amends secs. 3301, 3305, 3306, 3307, 3309, 3311, 30103 & 30113 of 1994 PA 451 (MCL 324.3301 et seq.) & adds sec. 3315.

Spectrum: Partisan Bill (Republican 5-0)

Status: (Passed) 2014-07-16 - Assigned Pa 0253'14 With Immediate Effect [SB0444 Detail]

Download: Michigan-2013-SB0444-Engrossed.html

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SB-0444, As Passed House, June 11, 2014

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 444

 

 

 

 

 

 

 

 

 

 

 

     <<A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 3301, 3305, 3306, 3307, 3309, 3311, 30103, and

 

30113 (MCL 324.3301, 324.3305, 324.3306, 324.3307, 324.3309,

 

324.3311, 324.30103, and 324.30113), sections 3301, 3305, 3307,

 

3309, and 3311 as added by 2004 PA 246, section 3306 as amended by

 

2011 PA 90, section 30103 as amended by 2013 PA 98, and section

 

30113 as amended by 2006 PA 496, and by adding section 3315.>>

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3301. As used in this part:

 

     (a) "Aquatic invasive species" means an aquatic species that

 

is nonnative to the ecosystem under consideration and whose

 

introduction causes or is likely to cause economic or environmental

 

harm or harm to human health.

 

     (b) (a) "Aquatic nuisance" means an organism that lives or

 

propagates, or both, within the aquatic environment and that

 

impairs the use or enjoyment of the waters of the state, including

 

the intermediate aquatic hosts for schistosomes that cause

 

swimmer's itch.

 

     (c) (b) "Certificate of coverage" means written authorization

 

from the department to implement a project under a general permit.

 

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

 

quality.

 

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

 

     Sec. 3305. (1) A chemical shall not be used in waters of the

 

state for aquatic nuisance control unless it is registered with the

 

EPA, pursuant to section 3 of the federal insecticide, fungicide,

 

and rodenticide act, 7 USC 136a, and the Michigan department of

 

agriculture and rural development, pursuant to part 83, for the

 

aquatic nuisance control activity for which it is used. The

 

department shall not deny a permit or certificate of coverage

 

because of the specific chemical proposed to be used, if the

 

chemical is so registered, unless the department has worked with

 

the applicant to identify an appropriate alternative chemical that

 

satisfies the department's concern and no such chemical is

 

available.

 

     (2) The department may conduct evaluations of the impacts and

 

effectiveness of any chemicals that are proposed for use for

 

aquatic nuisance control in waters of the state. This may include

 

the issuance of permits for field assessments of the chemicals.

 

     (3) The director, in consultation with the director of the

 

Michigan department of agriculture and rural development, may issue

 

an order to prohibit or suspend the use of a chemical for aquatic

 

nuisance control if, based on substantial scientific evidence, use

 

of the chemical causes unacceptable negative impacts to human

 

health or the environment. The department shall not issue permits

 

authorizing the use of such chemicals. In addition, a person shall

 

cease the use of such chemicals upon notification by the

 

department.

 

     Sec. 3306. (1) Until October 1, 2015, 2014, an application for

 

a certificate of coverage under this part shall be accompanied by a

 

fee of $75.00. Until October 1, 2015, subject Subject to subsection

 

(2), an application for an individual permit under this part shall

 

be accompanied by the following fee, based on the size of the area

 

of impact:

 

     (a) Less than 1/2 acre, $75.00.

 

     (b) One-half 1/2 acre or more but less than 5 acres, $200.00.

 

     (c) Five 5 acres or more but less than 20 acres, $400.00.

 

     (d) Twenty 20 acres or more but less than 100 acres, $800.00.

 

     (e) One hundred 100 acres or more, $1,500.00.

 

     (2) The department shall forward fees collected under this

 

section to the state treasurer for deposit in the land and water

 

management permit fee fund created in section 30113.

 

     (2) For the 2014-2015 state fiscal year and each subsequent

 

fiscal year, the department shall proportionately adjust the

 

certificate of coverage and permit application fees under

 

subsection (1) by category to achieve a target in fee revenue under

 

subsection (1) and shall post the adjusted fees on its website by

 

November 1. The department shall set the target so that the annual

 

cumulative total of the target amount plus all of the following

 

equals, as nearly as possible, $900,000.00:

 

     (a) The total amount of annual fees to be collected under

 

section 3309 in the state fiscal year.

 

     (b) The amount of general funds appropriated to the program

 

under this part.

 

     (c) The amount in the aquatic nuisance control fund created

 

under subsection (4) in excess of $100,000.00 carried forward from

 

the prior state fiscal year.

 

     (3) Notwithstanding any other provision of this section, fees

 

as adjusted under subsection (2) shall be proportional to and shall

 

not exceed the amounts set forth in subsection (1). For each state

 

fiscal year beginning with the 2015-2016 state fiscal year, the

 

state treasurer shall adjust the $900,000.00 figure in subsection

 

(2) by an amount determined by the state treasurer at the end of

 

the preceding fiscal year to reflect the cumulative annual

 

percentage change in the consumer price index. As used in this

 

subsection, "consumer price index" means the most comprehensive

 

index of consumer prices available for this state from the bureau

 

of labor statistics of the United States department of labor.

 

     (4) The aquatic nuisance control fund is created in the state

 

treasury. The department shall forward all fees collected under

 

this section, section 3309, and section 3311 to the state treasurer

 

for deposit into the fund. The state treasurer may receive money or

 

other assets from any other source for deposit into the fund. The

 

state treasurer shall direct the investment of the fund. The state

 

treasurer shall credit to the fund interest and earnings from fund

 

investments. Money in the fund at the close of the fiscal year

 

shall remain in the fund and shall not lapse to the general fund.

 

The department shall be the administrator of the fund for auditing

 

purposes. The department shall expend money from the fund, upon

 

appropriation, only for the administration of this part, including,

 

but not limited to, the following:

 

     (a) Issuance of certificates of coverage and permits.

 

     (b) Technology and reasonable laboratory costs to operate the

 

program under this part.

 

     (c) Compliance and enforcement activities related to aquatic

 

nuisance control.

 

     (d) Education of aquatic herbicide applicators, local and

 

state government agencies, lake boards, lakefront property owners,

 

and the general public about aquatic nuisance control and the

 

requirements of this part. The director may contract with a

 

nonprofit educational organization to administer an educational

 

program as described in this subdivision.

 

     (5) A fee under this section, section 3309, or section 3311

 

may be paid by credit or debit card or electronic fund transfer.

 

The department shall determine which major credit and debit cards

 

may be used to pay a fee. If a fee is paid by credit or debit card,

 

the department may collect a service assessment from the user of

 

the credit or debit card. The service assessment shall not exceed

 

the actual cost to the department of the credit or debit card

 

transaction.

 

     (6) The department shall not charge a fee for an amendment to

 

an application for a certificate of coverage or permit, including

 

an amendment to an application after that application has been

 

resubmitted under section 3307(7).

 

     Sec. 3307. (1) An application for a certificate of coverage or

 

permit may be submitted electronically.

 

     (2) (1) The department shall either approve or deny an

 

application for a certificate of coverage by May 1 or within the

 

latest of the following dates:

 

     (a) April 15.

 

     (b) 15 working days after receipt of a complete application. ,

 

whichever is later.

 

     (c) Any date requested by the applicant for the certificate of

 

coverage and agreed to by the department.

 

     (3) If the department denies an application for a certificate

 

of coverage, the department shall notify the applicant, in writing,

 

of the reasons for the denial.

 

     (4) (2) The department shall approve an application for a

 

permit in whole or part and issue the permit, or shall deny the

 

application, by May 1 or within the latest of the following dates:

 

     (a) April 15.

 

     (b) 30 working days after receipt of a complete application ,

 

whichever is later.except that this approval time is reduced to 15

 

working days after receipt of a complete application if the

 

waterbody is listed on the registry under section 3315 as being

 

infested with the particular aquatic invasive species that the

 

applicant proposes to control under the permit.

 

     (c) Any date requested by the permit applicant and agreed to

 

by the department.

 

     (5) The department shall not delay processing an application

 

for a permit or certificate of coverage because the department has

 

not completed processing of the fee payment accompanying the

 

application. This subsection does not apply to an applicant if a

 

previous fee payment offered by the applicant under section 3306 or

 

section 3309 failed because of nonsufficient funds.

 

     (6) If the department approves the application for a permit in

 

part or denies the application, the department shall, by the same

 

deadline for approval or denial of the application, notify the

 

applicant, in writing, of the reasons for the partial approval or

 

denial.

 

     (7) The department shall not deny an application for a

 

certificate of coverage or a permit because it was submitted after

 

a certain date in the year in which treatment is proposed. If the

 

department approves an application in part or denies an

 

application, the applicant may resubmit the application with

 

changes to address the reasons for partial approval or denial. The

 

resubmitted application is not subject to an additional fee.

 

     (8) (3) If the department fails to satisfy the requirements of

 

subsection (1) or (2) subsections (2) to (7) with respect to an

 

application for a certificate of coverage or a permit, the all of

 

the following apply:

 

     (a) The department shall pay the applicant an amount equal to

 

15% of the application fee specified under section 3306 for that

 

certificate of coverage or permit.

 

     (b) The application shall be considered to be approved and the

 

department shall be considered to have made any determination

 

required for approval if all of the following apply:

 

     (i) The proposed area of impact is the same as or entirely

 

contained within the area of impact approved in a previous permit.

 

     (ii) The active ingredient or trade name of each chemical

 

proposed to be applied is the same as approved in a previous permit

 

and each chemical is currently approved for use by the department.

 

     (iii) The application rate and number of treatments do not

 

exceed those approved in the previous permit.

 

     (iv) The minimum length of time between treatments is not less

 

than that approved in the previous permit.

 

     Sec. 3309. (1) The term of a certificate of coverage shall not

 

be less than 3 years unless the applicant requests a shorter term.

 

     (2) A permit under this part shall, at a minimum, include all

 

of the following information:

 

     (a) The active ingredient or the trade name of each chemical

 

to be applied.

 

     (b) The application rate of each chemical.

 

     (c) The maximum amount of each chemical to be applied per

 

treatment.

 

     (d) Minimum length of time between treatments for each

 

chemical.

 

     (e) A map or maps that clearly delineate the approved area of

 

impact.

 

     (f) The term of the permit. The term shall not be less than 3

 

years unless the applicant requests a shorter term.

 

     (3) A permit under this part shall authorize chemical

 

treatment in each year covered by the permit. This subsection does

 

not apply to a chemical if the chemical's annual use is restricted

 

in rules that were in effect on the effective date of the

 

amendatory act that added this subsection.

 

     (4) By April 1 of the second and each subsequent year of a

 

permit, the permittee shall pay the department an annual fee. The

 

annual fee shall equal the permit application fee paid for that

 

specific permit under section 3306 including, for annual fees due

 

after the initial treatment of an expanded area of impact under

 

section 3311(3), the additional fee under section 3311(3)(e). If an

 

annual fee is not received by the department by April 1, the permit

 

is suspended until the annual fee is paid. When the application fee

 

for a permit is paid, an applicant may choose to also pay in

 

advance all the annual fees that will become due under this

 

subsection if the permit is granted for the term requested by the

 

applicant. If the application is denied or is granted for a shorter

 

period than the applicant requested, the department shall refund

 

the overpayment of annual fees.

 

     (5) (2) The department may impose additional conditions on a

 

permit under this part to protect the natural resources or the

 

public health, to prevent economic loss or impairment of

 

recreational uses, to protect nontarget organisms, or to help

 

ensure control of the aquatic nuisance.

 

     Sec. 3311. (1) The department may make minor revisions to a

 

permit under this part, to minimize the impacts to the natural

 

resources, public health, and safety , or to improve aquatic

 

nuisance control, if the proposed revisions do not involve a change

 

in the scope of the project , and the permittee requests the

 

revisions in writing. The department shall not charge a fee for a

 

request for revisions to a permit. The department shall approve a

 

request for revisions to a permit in whole or in part or deny the

 

request within 3 business days after the request is received. The

 

request shall include all of the following information:

 

     (a) The proposed changes to the permit.

 

     (b) An explanation of the necessity for the proposed changes.

 

     (c) Maps that clearly delineate any proposed changes to the

 

area of impact.

 

     (d) Additional information that would help the department

 

reach a decision on a permit amendment.

 

     (2) If the permittee has written authorization to act on

 

behalf of a person described in section 3303(4)(a), (b), or (c),

 

upon written request of that person, the department shall transfer

 

the permit to a new permittee with written authorization to act on

 

behalf of that person. The department shall notify the original

 

permittee of the transfer of the permit.

 

     (3) Subject to subsection (4), a permittee may, without a

 

revision to the permit or certificate of coverage, expand the area

 

of impact beyond that authorized in the permit or certificate of

 

coverage to include adjacent areas of the same waterbody that

 

become infested after the application for the permit or certificate

 

of coverage was submitted to the department. The permittee may

 

increase the amount of chemicals used, as authorized in the permit

 

or certificate of coverage, by an amount proportionate to the

 

expansion in the area of impact. Before the initial treatment of

 

the expanded area, the permittee shall notify the department. The

 

permittee shall, within 15 business days after the initial

 

treatment of the expanded area of impact, provide the department

 

with all of the following:

 

     (a) A written explanation of the necessity for the expansion

 

of the area of impact.

 

     (b) A map that clearly delineates the changes to the area of

 

impact.

 

     (c) A written statement specifying the increase in the amount

 

of chemicals used or to be used as a result of the expansion of the

 

area of impact.

 

     (d) The treatment dates for the expanded area of impact.

 

     (e) If the permit application fee under section 3306 would

 

have been higher if the expanded area of impact had been included

 

in the permit application, a fee equal to the difference between

 

the application fee paid and the application fee that would have

 

been due.

 

     (4) If the area of impact authorized in a permit or

 

certificate of coverage is greater than 100 acres, a permittee

 

shall not expand the area of impact under subsection (3) by more

 

than 50% unless both of the following apply:

 

     (a) The permittee has notified the department in advance of

 

the proposal to expand the area of impact. The notification shall

 

include the information described in subsection (3)(a) and (b).

 

     (b) The department has not, within 2 business days after

 

receiving notification under subdivision (a), notified the

 

permittee of specific concerns about the proposal and that the

 

proposal requires a revision of the permit or certificate of

 

coverage.

 

     Sec. 3315. The department shall post, by January 1, 2016, and

 

maintain on its website a registry of waterbodies infested by

 

aquatic invasive species and the particular aquatic invasive

 

species infesting each waterbody. The registry shall be based on

 

information from all of the following:

 

     (a) Permits and certificates of coverage issued under this

 

part.

 

     (b) Reports received by the department from any of the

 

following:

 

     (i) Certified applicators or registered applicators under part

 

83.

 

     (ii) Representatives of public or private institutions of

 

higher education.

 

     (iii) Representatives of any other state, local, or federal

 

agency with responsibility for the environment or natural

 

resources.

 

     Sec. 30103. (1) A permit is not required under this part for

 

any of the following:

 

     (a) Any fill or structure existing before April 1, 1966, in

 

waters covered by former 1965 PA 291, and any fill or structures

 

existing before January 9, 1973, in waters covered for the first

 

time by former 1972 PA 346.

 

     (b) A seasonal structure placed on bottomland to facilitate

 

private noncommercial recreational use of the water if it does not

 

unreasonably interfere with the use of the water by others entitled

 

to use the water or interfere with water flow.

 

     (c) Reasonable sanding of beaches to the existing water's edge

 

by a the riparian owner or a person authorized by the riparian

 

owner.

 

     (d) Maintenance of an agricultural drain, regardless of

 

outlet, if all of the following requirements are met:

 

     (i) The maintenance includes only activities that maintain the

 

location, depth, and bottom width of the drain as constructed or

 

modified at any time before July 1, 2014.

 

     (ii) The maintenance is performed by the landowner or pursuant

 

to the drain code of 1956, 1956 PA 40, MCL 280.1 to 280.630.

 

     (e) A waste collection or treatment facility that is ordered

 

to be constructed or is approved for construction under state or

 

federal water pollution control law, if constructed in upland.

 

     (f) Construction and maintenance of minor drainage structures

 

and facilities which are identified by rule promulgated by the

 

department pursuant to section 30110. Before such a rule is

 

promulgated, the rule shall be approved by the majority of a

 

committee consisting of the director of the department, the

 

director of the department of agriculture and rural development,

 

and the director of the state transportation department or their

 

designated representatives. The rules shall be reviewed at least

 

annually.

 

     (g) Maintenance of a drain that either was legally established

 

and constructed before January 1, 1973, pursuant to the drain code

 

of 1956, 1956 PA 40, MCL 280.1 to 280.630, except those legally

 

established drains constituting mainstream portions of certain

 

natural watercourses identified in rules promulgated by the

 

department under section 30110, or was constructed or modified

 

under a permit issued pursuant to this part. As used in this

 

subdivision, "maintenance of a drain" means the physical

 

preservation of the location, depth, and bottom width of a drain

 

and appurtenant structures to restore the function and approximate

 

capacity of the drain as constructed or modified at any time before

 

July 1, 2014, and includes, but is not limited to, the following

 

activities if performed with best management practices:

 

     (i) Excavation of accumulated sediments back to original

 

contours.

 

     (ii) Reshaping of the side slopes.

 

     (iii) Bank stabilization where reasonably necessary to prevent

 

erosion. Materials used for stabilization must be compatible with

 

existing bank or bed materials.

 

     (iv) Armoring, lining, or piping if a previously armored,

 

lined, or piped section is being repaired and all work occurs

 

within the footprint of the previous work.

 

     (v) Replacement of existing control structures, if the

 

original function of the drain is not changed and the original

 

approximate capacity of the drain is not increased.

 

     (vi) Repair of stabilization structures.

 

     (vii) Culvert replacement, including culvert extensions of not

 

more than 24 additional feet per culvert.

 

     (viii) Emergency reconstruction of recently damaged parts of the

 

drain. Emergency reconstruction must occur within a reasonable

 

period of time after damage occurs in order to qualify for this

 

exemption.

 

     (h) Projects constructed under the watershed protection and

 

flood prevention act, chapter 656, 68 Stat. 666, 16 USC 1001 to

 

1008, and 1010, and 1011.

 

     (i) Construction and maintenance of privately owned cooling or

 

storage ponds used in connection with a public utility except at

 

the interface with public waters.

 

     (j) Maintenance of a structure constructed under a permit

 

issued pursuant to this part and identified by rule promulgated

 

under section 30110, if the maintenance is in place and in kind

 

with no design or materials modification.

 

     (k) A water withdrawal.

 

     (l) Annual installation of a seasonal dock or docks, pilings,

 

mooring buoys, or other mooring structures previously authorized by

 

and in accordance with a permit issued under this part.

 

     (m) Controlled access of livestock to streams for watering or

 

crossing if constructed in accordance with applicable practice

 

standards set by the United States department of agriculture,

 

natural resources conservation service.

 

     (n) Temporary drawdowns of impoundments at hydroelectric

 

projects licensed by the federal energy regulatory commission

 

(FERC) and subject to FERC's authority if both of the following

 

apply:

 

     (i) The FERC licensee has consulted this state during the

 

drawdown plan development and this state's concerns have been

 

addressed in the drawdown plan as FERC considers appropriate.

 

     (ii) Adverse environmental impacts, including stream flow,

 

Senate Bill No. 444 as amended June 10, 2014

aquatic resources, and timing, have been avoided and minimized to

 

the extent practical.

 

     (o) Removal, by the riparian owner or a person authorized by

 

the riparian owner, of plants that are an aquatic nuisance as

 

defined in section 3301, if the removal is accomplished by hand-

 

pulling without using a powered or mechanized tool and all plant

 

fragments are removed from the water and properly disposed of on

 

land above the ordinary high-water mark as defined in section

 

30101.

 

     (p) [Raking of lake bottomlands by the riparian owner or a person

 

authorized by the riparian owner. To minimize effects on the lake

 

bottomlands, the areas raked shall be unvegetated before raking and

 

predominantly composed of sand or pebbles, and the raking shall be

 

performed without using a powered or mechanized tool.] For the purposes

of this subdivision, the pulling of a

 

nonpowered, nonmechanized tool with a boat is not the use of a

 

powered or mechanized tool.

 

     (2) As used in this section, "water withdrawal" means the

 

removal of water from its source for any purpose.

 

     (3) As used in this part, "agricultural drain" means a human-

 

made conveyance of water that meets all of the following

 

requirements:

 

     (a) Does not have continuous flow.

 

     (b) Flows primarily as a result of precipitation-induced

 

surface runoff or groundwater drained through subsurface drainage

 

systems.

 

     (c) Serves agricultural production.

 

     (d) Was constructed before January 1, 1973, or was constructed

 

in compliance with this part or former 1979 PA 203.

 

     Sec. 30113. (1) The land and water management permit fee fund

 

is created within the state treasury.

 

     (2) The state treasurer may receive money or other assets from

 

any source for deposit into the fund. The state treasurer shall

 

direct the investment of the fund. The state treasurer shall credit

 

to the fund interest and earnings from fund investments. The state

 

treasurer shall annually present to the department an accounting of

 

the amount of money in the fund. The department shall be the

 

administrator of the fund for auditing purposes.

 

     (3) Money in the fund at the close of the fiscal year shall

 

remain in the fund and shall not lapse to the general fund.

 

     (4) The department shall expend money from the fund, upon

 

appropriation, only to implement this part and the following:

 

     (a) Sections 3104, 3107, and 3108.

 

     (b) Before October 1, 2004, section 12562 of the public health

 

code, 1978 PA 368, MCL 333.12562, or, on or after October 1, 2004,

 

part 33.

 

     (b) (c) Part 303.

 

     (c) (d) Part 315.

 

     (d) (e) Part 323.

 

     (e) (f) Part 325.

 

     (f) (g) Part 339.

 

     (g) (h) Part 353.

 

     (h) (i) Section 117 of the land division act, 1967 PA 288, MCL

 

560.117.

 

     (5) The department shall annually report to the legislature

 

how money in the fund was expended during the previous fiscal year.