HB-4554, As Passed Senate, October 27, 2011

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4554

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 1301, 1307, 30102, 30104, 32603, 32604, 32606,

32607, 32609, and 32611 (MCL 324.1301, 324.1307, 324.30102,

324.30104, 324.32603, 324.32604, 324.32606, 324.32607, 324.32609,

and 324.32611), section 1301 as amended by 2009 PA 120, section

1307 as added by 2004 PA 325, section 30102 as amended by 2009 PA

139, section 30104 as amended by 2011 PA 90, sections 32603, 32604,

32606, and 32609 as added by 2000 PA 278, section 32607 as amended

by 2004 PA 546, and section 32611 as added by 2000 PA 277.

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.

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, or removal

permit.

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

area permit.

(xix) Section 32503, permit for dredging and filling

bottomland.

(xx) Section 32603, permit for submerged log removal from

Great Lakes bottomlands.

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

area use.

(xxii) (~~xxi~~) Section 36505, endangered species permit.

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

(xxiv) (~~xxiii~~) Section 42101, dog training area permit.

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

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

(xxvii) (~~xxvi~~) Section 44513, charter boat operating permit under

reciprocal agreement.

(xxviii) (~~xxvii~~) Section 44517, boat livery operating permit.

(xxix) (~~xxviii~~) Section 45503, permit to take frogs for scientific

use.

(xxx) (~~xxix~~) Section 45902, game fish propagation license.

(xxxi) (~~xxx~~) Section 45906, game fish import license.

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

(xxxiii) (~~xxxii~~) Section 62509, brine, storage, or waste disposal

well drilling or conversion permit or test well drilling permit.

(xxxiv) (~~xxxiii~~) Section 63103a, ~~metallic~~ ferrous mineral mining

permit.

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

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

~~the permit,~~ respectively.

(xxxvi) (~~xxxv~~) Section 63704, sand dune mining permit.

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

(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 or an authorization for

a specific project to proceed under a general permit issued under

section 30312.

(ix) Ninety days after the close of the review or comment

period under section 32604, or if a public hearing is held, 90 days

after the date of the public hearing for a permit under section

32603.

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

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

(xi) (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.

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

held, 90 days after the hearing, whichever is later.

Sec. 1307. (1) By the processing deadline, the department

shall approve or deny an application for a permit. If requested by

the permit applicant, the department may extend the processing

period for a permit by not more than 20%. Approval of an

application for a permit may be granted with conditions or

modifications necessary to achieve compliance with the part or

parts of this act under which the permit is issued.

(2) A denial of an application for a permit shall include an

explanation of the reasons for denial and make specific reference

to provisions of this act or rules promulgated under this act

providing the basis for denial.

(3) Except for permits described in subsection (4), if the

department fails to satisfy the requirements of subsection (1) with

respect to an application for a permit, the department shall pay

the applicant an amount equal to 15% of the greater of the

following, as applicable:

(a) The amount of the application fee for that permit.

(b) If an assessment or other fee is charged on an annual or

other periodic basis by the department to a person holding the

permit for which the application was submitted, the amount of the

first periodic charge of that assessment or other fee for that

permit.

(4) If the department fails to satisfy the requirements of

subsection (1) with respect to a permit under section 11509, 11512,

or 30307, or 32603, the application shall be considered to be

approved and the department shall be considered to have made any

determination required for approval.

(5) The failure of the department to satisfy the requirements

of subsection (1) or the fact that the department is required to

make a payment under subsection (3) or is considered to have

approved a permit under subsection (4) shall not be used by the

department as the basis for discriminating against the applicant.

If the department is required to make a payment under subsection

(3), the application shall be processed in sequence with other

applications for the same type of permit, based on the date on

which the processing period began, unless the director determines

on an application-by-application basis that the public interest is

best served by processing in a different order.

(6) If the department fails to satisfy the requirements of

subsection (1), the director shall notify the appropriations

committees of the senate and house of representatives of the

failure. The notification shall be in writing and shall include

both of the following:

(a) An explanation of the reason for the failure.

(b) A statement of the amount the department was required to

pay the applicant under subsection (3) or a statement that the

department was required to consider the application to be approved

under subsection (4), as applicable.

Sec. 30102. (1) Except as provided in this part, a person

without a permit from the department shall not do any of the

following:

(a) Dredge or fill bottomland.

(b) Construct, enlarge, extend, remove, or place a structure

on bottomland.

(d) Create, enlarge, or diminish an inland lake or stream.

(e) Structurally interfere with the natural flow of an inland

lake or stream.

(f) Construct, dredge, commence, extend, or enlarge an

artificial canal, channel, ditch, lagoon, pond, lake, or similar

waterway where the purpose is ultimate connection with an existing

inland lake or stream, or where any part of the artificial waterway

is located within 500 feet of the ordinary high-water mark of an

existing inland lake or stream.

(g) Connect any natural or artificially constructed waterway,

canal, channel, ditch, lagoon, pond, lake, or similar water with an

existing inland lake or stream for navigation or any other purpose.

(2) A person shall not remove submerged logs from rivers or

streams for the purpose of submerged log recovery. This subsection

does not prohibit the department from issuing a permit under this

part for other purposes, including removing logjams or removing

logs that interfere with navigation of the river or stream.

Sec. 30104. (1) A person shall not undertake a project subject

to this part except as authorized by a permit issued by the

department pursuant to part 13. An application for a permit shall

include any information that may be required by the department. If

a project includes activities at multiple locations, 1 application

may be filed for the combined activities.

(2) Except as provided in subsections (3) and (4), until

October 1, 2015, an application for a permit shall be accompanied

by a fee based on an administrative cost in accordance with the

following schedule:

(a) For activities included in a minor project category, or a

seasonal drawdown or the associated reflooding, or both, of a dam

or impoundment for the purpose of weed control, a fee of $50.00.

However, for a permit for a seasonal drawdown or associated

reflooding, or both, of a dam or impoundment for the purpose of

weed control that is issued for the first time after October 9,

1995, an initial fee of $500.00 with subsequent permits for the

same purpose being assessed a $50.00 fee.

(b) For authorization under a general permit, a $50.00 fee.

(i) $50.00 for an expansion of 1-10 slips to an existing

permitted marina.

(ii) $100.00 for a new marina with 1-10 proposed marina slips.

(iii) $250.00 for an expansion of 11-50 slips to an existing

permitted marina, plus $10.00 for each slip over 50.

(iv) $500.00 for a new marina with 11-50 proposed marina slips,

plus $10.00 for each slip over 50.

(v) $1,500.00 if an existing permitted marina proposes

maintenance dredging of 10,000 cubic yards or more or the addition

of seawalls, bulkheads, or revetments of 500 feet or more.

(d) For major projects other than a project described in

subdivision (c)(v), involving any of the following, a fee of

$2,000.00:

(i) Dredging of 10,000 cubic yards or more.

(ii) Filling of 10,000 cubic yards or more.

(iii) Seawalls, bulkheads, or revetments of 500 feet or more.

(iv) Filling or draining of 1 acre or more of wetland

contiguous to a lake or stream.

(v) New dredging or upland boat basin excavation in areas of

suspected contamination.

(vi) Shore projections, such as groins and underwater

stabilizers, that extend 150 feet or more into a lake or stream.

(vii) New commercial docks or wharves of 300 feet or more in

length.

(viii) Stream enclosures 100 feet or more in length.

(ix) Stream relocations 500 feet or more in length.

(x) New golf courses.

(xi) Subdivisions.

(xii) Condominiums.

(e) For the removal of submerged logs from bottomland of an

inland lake, a $500.00 fee.

(f) ~~(e)~~ For all other projects not listed in subdivisions (a)

through ~~(d)~~ (e), a fee of $500.00.

(3) A project that requires review and approval under this

part and 1 or more of the following acts or parts of acts is

subject to only the single highest permit fee required under this

part or the following acts or parts of acts:

(a) Part 303.

(b) Part 323.

(d) Section 3104.

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

560.117.

(4) If work has been done in violation of a permit requirement

under this part and restoration is not ordered by the department,

the department may accept an application for a permit if the

application is accompanied by a fee equal to 2 times the permit fee

required under this section.

Sec. 32603. (1) A person shall ~~obtain a permit from the~~

~~department under this part prior to removing~~ not remove submerged

logs from bottomlands except as authorized by a permit issued by

the department pursuant to part 13.

(2) The department may issue a permit under this part to a

person for the removal of submerged logs from patented lands if

permission is received from the lawful owner of the patented lands.

(3) A person shall not recover, alter, or destroy abandoned

property as defined in part 761 while engaging in submerged log

removal operations under a submerged log removal permit issued

under this part.

(4) For submerged log recovery in underwater preserves

established under part 761, the department shall place reasonable

conditions on submerged log removal permits to prevent damage to

abandoned watercraft or other features of archaeological,

historical, recreational, or environmental significance and to

minimize conflicts between recreational activities within the

preserve and the submerged log recovery operation.

Sec. 32604. (1) ~~For calendar year 2000, the department shall~~

~~establish a time period for the submission of applications for~~

~~submerged log removal permits under this part. Beginning in 2001,~~

~~and each year thereafter, applications~~ Applications for submerged

log removal permits shall be submitted before February 1 of each

calendar year. ~~However, the department shall not issue a submerged~~

~~log removal permit under this part after December 31, 2003.~~

(2) An application for a submerged log removal permit shall be

submitted in writing on a form provided by the department and shall

include all of the following:

(a) A description of the proposed bottomland log removal area

with boundaries delineated by the use of current technology such as

a digital global positioning system or other technology approved by

the department. The proposed bottomland log removal area shall be a

contiguous area of not more than 320 acres. The area proposed shall

be square or rectangular in shape, and the length shall not exceed

the width by more than a factor of 6.

(b) A description of the methods to be used to raise the

submerged logs, the time of year during which submerged logs will

be raised, and the procedures to be used for transferring logs to

the shore.

associated with the proposed submerged log removal method.

(d) Identification of the steps proposed to mitigate any

adverse environmental impacts caused by the proposed submerged log

removal operation.

(e) Other information that the department considers necessary

in evaluating a submerged log removal permit application.

(f) A ~~$3,500.00~~ $500.00 application fee.

(3) An application for a submerged log removal permit is not

complete until all information requested on the application form

and any other information requested by the department are received.

Within 30 days of its receipt of an application, the department

shall notify the applicant in writing if the application is

deficient. The applicant shall submit the requested information to

the department within 30 days after the date the notice is

provided. If the applicant fails to respond within the 30-day

period, the department shall deny the submerged log removal permit

unless the applicant requests and the department approves an

extension of time based upon the applicant's reasonable

justification for the extension.

(4) Application fees received under this section shall be

forwarded to the state treasurer for deposit into the fund.

Sec. 32606. (1) The department shall review each complete

application received for a submerged log removal permit and shall

not issue a permit unless the department determines both of the

following:

(a) That any adverse impacts, including, but not limited to,

impacts to the environment, natural resources, riparian rights, and

the public trust are minimal and will be mitigated to the extent

practicable.

(b) That the proposed activity will not unreasonably affect

the public health, safety, and welfare.

(2) The department may determine that certain areas within a

proposed bottomland log removal area described in an application

for a submerged log removal permit shall not be authorized for

submerged log removal based upon adverse impacts, including, but

not limited to, adverse impacts to the environment, natural

resources, riparian rights, and the public trust.

(3) The department shall make a decision on whether or not to

issue a submerged log removal permit under this part within 90 days

after the close of the review and comment period under section

32605 or, if a public hearing is held under section 32608, within

90 days after the date of that public hearing.

(4) If the department issues a submerged log removal permit,

the department shall condition the permit on compliance with both

of the following:

(a) The permittee has provided the department with a $3,000.00

log recovery fee.

(b) The permittee has provided the department a bond as

required in section 32607(7).

(5) The department shall notify the applicant in writing

within 10 days after the date the department approves or denies a

submerged log removal permit under this section.

(6) The department shall forward log recovery fees received

under this subsection to the state treasurer for deposit into the

Great Lakes fund created in section 32611.

Sec. 32607. (1) The department shall not authorize the same

bottomland log removal area in more than 1 submerged log removal

permit at any 1 time.

(2) The department may modify the boundaries of a proposed

bottomland log removal area in a submerged log removal permit to

avoid overlaps with other active submerged log removal permits or

adverse impacts, including, but not limited to, impacts to the

environment, natural resources, riparian rights, and the public

trust.

(3) A submerged log removal plan approved by the department

shall be included in each submerged log removal permit.

(4) A submerged log removal permit shall contain terms and

conditions that are determined by the department to protect the

environment, natural resources, riparian rights, and the public

trust.

(5) Each submerged log removal permit shall expire ~~on January~~

~~1, 2013~~ 5 years after the date the permit is issued. An However, a

submerged log removal permit issued prior to the effective date of

the 2011 amendatory act that amended this section expires 5 years

after the effective date of the 2011 amendatory act that amended

this section. If federal approval is required, an applicant shall

notify the department of the date on which the federal government

issued its approval for the submerged log removal permit.

~~Processing fees received under this subsection shall be forwarded~~

~~to the state treasurer for deposit into the fund.~~

(6) A submerged log removal permit issued under this section

is not transferrable unless the transfer is approved in writing by

the department.

(7) An applicant for a submerged log removal permit shall

provide a ~~performance~~ bond acceptable to the department in the

amount of not less than $10,000.00 or more than $100,000.00 as

required by the department, based upon permit conditions including

costs of restoration and payments under section 32609. Except as

provided in subsection (8), the term of the bond shall extend for 1

year following the expiration of the submerged log removal permit.

The ~~performance~~ bond shall be provided to the department at least

10 days prior to beginning submerged log removal in a bottomland

log removal area. The ~~performance~~ bond shall ensure compliance with

the submerged log removal permit ~~for the period of the permit or~~

~~until the authorized submerged log removal is completed to the~~

~~satisfaction of the department~~ and all required payments under

section 32609. ~~have been made. The~~ If a submerged log removal

permit is terminated under subsection (8), the department shall

issue a written statement releasing the permittee ~~and~~ or bonding

company, ~~upon termination of the submerged log removal permit and~~

or both, upon satisfaction of the department as to the compliance

of the permittee with the terms and conditions of the permit ~~. The~~

~~department may draw upon the performance bond for delinquent~~ and

satisfaction of all payments as required in section 32609.

(8) A permittee may request, in writing, and the department

may grant, termination of a submerged log removal permit prior to

the expiration date, including release from quarterly reports and

~~performance~~ bond requirements.

(9) As used in the section, "bond" means a performance bond

from a surety company authorized to transact business in this state

or an irrevocable letter of credit, in favor of the department.

Sec. 32609. (1) The state reserves a payment of ~~2.0 times~~ 15%

of the sawlog stumpage value ~~for~~ of each submerged log that is

removed from unpatented lands. As used in this subsection, "sawlog

stumpage value" means the ~~most recent average value of standing~~

~~timber on state forestlands for each species as determined and~~

~~reported by the department of natural resources. However, if a~~

~~species is no longer harvested on state forestlands, "sawlog~~

~~stumpage value" means the most recent highest value of any species~~

~~currently being harvested on state forestlands as determined and~~

~~reported by the department of natural resources.~~price received from

recovered submerged logs.

(2) The holder of a submerged log removal permit under this

part shall provide the department with a detailed report and all

payments due under this section within 30 days after the close of

each calendar quarter. The report shall include an accurate scaling

at dockside of all submerged logs removed, by species. The

permittee shall provide for an independent agent, approved by the

department in writing, to conduct the scaling and species

determination.

(3) All payments received under this section shall be

forwarded to the state treasurer for deposit into the fund.

(4) After a permittee is notified in writing that a payment

under this section is overdue, the department may order suspension

of the submerged log removal permit until the payment is submitted

in full. The permittee shall not resume submerged log removal

operations until the department provides written authorization for

the operations to resume.

~~(5) Not later than December 31, 2001, the department shall~~

~~conduct a study to determine the fair market value of submerged~~

~~logs as a potential basis for determining the payment to the state~~

~~under subsection (1). The department may conduct the study or may~~

~~enter into a contract with a qualified person to conduct the study.~~

~~Upon completion, the department shall submit a report of the~~

~~results of the study to the standing committees of the legislature~~

~~with jurisdiction primarily related to natural resources and the~~

~~environment and to the senate and house appropriations~~

~~subcommittees on environmental quality and natural resources.~~

Sec. 32611. (1) The Great Lakes fund is created within the

state treasury.

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

any source for deposit into the Great Lakes fund. The state

treasurer shall direct the investment of the Great Lakes fund. The

state treasurer shall credit to the Great Lakes fund interest and

earnings from Great Lakes fund investments.

(3) Money in the Great Lakes fund at the close of the fiscal

year shall remain in the Great Lakes fund and shall not lapse to

the general fund.

(4) The department shall expend money from the Great Lakes

fund, upon appropriation, only for environmental projects related

to the Great Lakes and areas contiguous to the Great Lakes

including, but not limited to, the prevention and management of

~~non-native~~ nonnative species, coastal wetland restoration,

contaminated sediment cleanup, and underwater preserve management,

and for the administration of this part.