Bill Text: MI HB4663 | 2013-2014 | 97th Legislature | Chaptered

Michigan House Bill 4663 (Prior Session Legislation)

Bill Title: Water; conservation; agricultural land uses; modify water withdrawal dispute resolution process and allowable expenditures from the agricultural preservation fund. Amends secs. 31701, 31702, 31703, 31704, 31705, 31706, 31708, 31711, 31712, 36201 & 36202 of 1994 PA 451 (MCL 324.31701 et seq.) & adds sec. 31702a.

Spectrum: Slight Partisan Bill (Republican 13-5)

Status: (Passed) 2013-07-03 - Assigned Pa 86'13 With Immediate Effect [HB4663 Detail]

Download: Michigan-2013-HB4663-Chaptered.html

Act No. 86

Public Acts of 2013

Approved by the Governor

June 27, 2013

Filed with the Secretary of State

June 28, 2013

EFFECTIVE DATE: June 28, 2013

STATE OF MICHIGAN

97TH LEGISLATURE

REGULAR SESSION OF 2013

Introduced by Reps. Daley, Denby, Dianda, Durhal, Geiss, Kosowski, Kurtz, Lauwers, LaVoy, MacMaster, Muxlow, O’Brien, Outman, Pscholka, Rendon, Robinson, Talabi, VerHeulen, Walsh and Zorn

ENROLLED HOUSE BILL No. 4663

AN ACT to amend 1994 PA 451, entitled “An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to protect the people’s right to hunt and fish; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, assessments, and donations; to provide certain appropriations; to prescribe penalties and provide remedies; and to repeal acts and parts of acts,” by amending sections 31701, 31702, 31703, 31704, 31705, 31706, 31708, 31711, 31712, 36201, and 36202 (MCL 324.31701, 324.31702, 324.31703, 324.31704, 324.31705, 324.31706, 324.31708, 324.31711, 324.31712, 324.36201, and 324.36202), sections 31701, 31702, 31703, 31704, 31705, 31706, 31708, 31711, and 31712 as added by 2012 PA 602, section 36201 as added by 2000 PA 262, and section 36202 as amended by 2004 PA 75, and by adding section 31702a.

The People of the State of Michigan enact:

Sec. 31701. As used in this part:

(a) “Agricultural well” means a high-capacity well that is located on a farm and is used for an agricultural purpose as that term is defined in section 32701.

(b) “Complaint” means a complaint submitted under section 31702 alleging a potential groundwater dispute.

(c) “Construction” means the process of building a building, road, utility, or another structure, including all of the following:

(i) Assembling materials.

(ii) Disassembling and removing a structure.

(iii) Preparing the construction site.

(iv) Work related to any of the items described in subparagraphs (i) to (iii).

(d) “Department” means the department of environmental quality.

(e) “Dewatering well” means a well or pump that is used to remove water from a mining operation or that is used for a limited time period as part of a construction project to remove or pump water from a surface or subsurface area and ceases to be used upon completion of the construction project or shortly after completion of the construction project.

(f) “Director” means the director of the department or his or her designee.

(g) “Farm” means that term as it is defined in section 2 of the Michigan right to farm act, 1981 PA 93, MCL 286.472.

(h) “Fund” means the aquifer protection revolving fund created in section 31710.

(i) “Groundwater” means the water in the zone of saturation that fills all of the pore spaces of the subsurface geologic material.

(j) “Groundwater dispute” means a groundwater dispute declared by order of the director or the director of the department of agriculture and rural development under section 31703.

(k) “High-capacity well” means 1 or more water wells associated with an industrial or processing facility, an irrigation facility, or a farm that, in the aggregate from all sources and by all methods, have the capability of withdrawing 100,000 or more gallons of groundwater in 1 day.

(l) “Local health department” means that term as it is defined in section 1105 of the public health code, 1978 PA 368, MCL 333.1105.

(m) “Owner of a high-capacity well” means the person that owns or controls the parcel of property where a high-capacity well is located.

(n) “Owner of a small-quantity well” means the person that owns or controls the parcel of property where a small-capacity well is located.

(o) “Person” means an individual, partnership, corporation, association, governmental entity, or other legal entity.

(p) “Potable water” means water that at the point of use is acceptable for human consumption.

(q) “Small-quantity well” means 1 or more water wells of a person at the same location that, in the aggregate from all sources and by all methods, do not have the capability of withdrawing 100,000 or more gallons of groundwater in 1 day.

(r) “Water well” means an opening in the surface of the earth, however constructed, that is used for the purpose of withdrawing groundwater. Water well does not include a drain as defined in section 3 of the drain code of 1956, 1956 PA 40, MCL 280.3.

(s) “Well drilling contractor” means a well drilling contractor registered under part 127 of the public health code, 1978 PA 368, MCL 333.12701 to 333.12771.

Sec. 31702. (1) The owner of a small-quantity well may submit a complaint alleging a potential groundwater dispute if the small-quantity well has failed to furnish the well’s normal supply of water or the well has failed to furnish potable water and the owner has credible reason to believe that the well’s problems have been caused by a high-capacity well. A complaint shall be submitted to the director or to the director of the department of agriculture and rural development if the complaint involves an agricultural well. The complaint shall be in writing and shall be submitted in person, via certified mail, via the toll-free facsimile telephone number provided in subsection (6), or via other means of electronic submittal as developed by the department. However, the director or the director of the department of agriculture and rural development may refuse to accept an unreasonable complaint. The complaint shall include all of the following information:

(a) The name, address, and telephone number of the owner of the small-quantity well.

(b) The location of the small-quantity well, including the county, township, township section, and address of the property on which the small-quantity well is situated, and all other available information that indicates the location of that well.

(c) A written assessment by a well drilling contractor that the small-quantity well failure was not the result of well design or equipment failure. The assessment shall include a determination of the static water level in the well at the time of the assessment, if the static water level determination will not result in the well being damaged or decommissioned, and, if readily available, the type of pump and equipment.

(d) An explanation of why the small-quantity well owner believes that a high-capacity well has interfered with the proper function of the small-quantity well and any information available to the small-quantity well owner about the location and operation of the high-capacity well.

(e) The date or dates on which the interference by a high-capacity well occurred.

(f) Sufficient evidence to establish a reasonable belief that the interference was caused by a high-capacity well.

(2) The owner of a small-quantity well may call the toll-free telephone line provided for in subsection (6) to request a complaint form or other information regarding the dispute resolution process provided in this part.

(3) Within 2 business days after receipt of a complaint under subsection (1), the director or the director of the department of agriculture and rural development, as appropriate, shall contact the complainant and the owner of each high-capacity well identified in the complaint, shall provide actual notice of the complaint to the owner of each high-capacity well identified in the complaint, and shall begin an investigation.

(4) Within 5 business days after the owner of each high-capacity well has been provided with actual notice of the complaint under subsection (3), the director or the director of the department of agriculture and rural development, as appropriate, shall conduct an on-site evaluation. If the well is an agricultural well, the department shall consult with and provide technical assistance to the department of agriculture and rural development regarding the on-site evaluation. However, if the complaint is for a small-quantity well that is in close proximity to other small-quantity wells for which documented complaints have been received and investigated during the previous 60 days, the department or the department of agriculture and rural development, as appropriate, need not conduct an on-site evaluation unless it determines that an on-site evaluation is necessary. The director or the director of the department of agriculture and rural development, as appropriate, shall give affected persons an opportunity to contribute to the investigation of a complaint. In conducting the investigation, the director or the director of the department of agriculture and rural development, as appropriate, shall consider whether the owner of the high-capacity well is using industry-recognized water conservation management practices.

(5) After conducting an investigation, the director or the director of the department of agriculture and rural development, as appropriate, shall make a diligent effort to resolve the complaint. In attempting to resolve a complaint, the director or the director of the department of agriculture and rural development, as appropriate, may propose a remedy that he or she believes would equitably resolve the complaint.

(6) The director shall provide for the use of a toll-free facsimile line to receive complaints and a toll-free telephone line for owners of small-quantity wells to request complaint forms and to obtain other information regarding the dispute resolution process provided in this part.

(7) The director and the director of the department of agriculture and rural development shall do both of the following:

(a) Publicize the toll-free facsimile line and the toll-free telephone line provided for in subsection (6).

(b) Enter into a memorandum of understanding that describes the process that will be followed by each director when a complaint involves an agricultural well.

(8) A complainant who submits more than 2 unverified complaints under this section within 1 year may be ordered by the director or the director of the department of agriculture and rural development to pay for the full costs of investigation of any third or subsequent unverified complaint. As used in this subsection, “unverified complaint” means a complaint in response to which the director or the director of the department of agriculture and rural development determines that there is not reasonable evidence to declare a groundwater dispute.

(9) If an owner of a high-capacity well that is not an agricultural well does not wish to participate in the dispute resolution process under this part, that dispute shall be resolved as otherwise provided by law.

Sec. 31702a. (1) If a complaint regarding an agricultural well is not resolved under section 31702, the director of the department of agriculture and rural development shall schedule and provide written notice of an informal meeting between the parties to the dispute. The informal meeting shall be scheduled at least 10 business days prior to the issuance of an order declaring a groundwater dispute under section 31703. The participants at the informal meeting shall include the director of the department of agriculture and rural development, the owner of the agricultural well, and the owner or owners of the small-quantity wells that are alleged to be impacted by the agricultural well who wish to attend. However, upon written notice provided to the director of the department of agriculture and rural development, the owner of the agricultural well may waive the informal meeting.

(2) At the informal meeting held pursuant to subsection (1), the director of the department of agriculture and rural development shall present the information that he or she has obtained regarding the items listed in section 31703(1)(a) through (f) and (2). The owner of the agricultural well shall be given an opportunity to challenge the department’s assertions and may submit information that the problems associated with the small-quantity well or wells are not being caused by the agricultural well. The owner or owners of the small-quantity wells alleged to be impacted may also submit additional information regarding the complaint.

Sec. 31703. (1) The director or the director of the department of agriculture and rural development, as appropriate, shall, by order, declare a groundwater dispute if an investigation of a complaint discloses all of the following, based upon reasonable scientifically based evidence, and within a reasonable amount of time the director or the director of the department of agriculture and rural development, as appropriate, is unable to resolve the complaint:

(a) That the small-quantity well has failed to furnish the well’s normal supply of water or failed to furnish potable water.

(b) That the small-quantity well and the well’s equipment were functioning properly at the time of the failure. The determination under this subdivision shall be made based upon an assessment from a well drilling contractor that is provided by the owner of the small-quantity well.

(d) That the lowering of the groundwater level exceeds normal seasonal water level fluctuations and substantially impairs continued use of the groundwater resource in the area.

(e) That the lowering of the groundwater level was caused by at least 1 high-capacity well.

(f) That the owner of the small-quantity well did not unreasonably reject a remedy proposed by the director or the director of the department of agriculture and rural development under section 31702(5).

(2) In addition to the authority under subsection (1) to declare a groundwater dispute, if the director or the director of the department of agriculture and rural development, as appropriate, has clear and convincing scientifically based evidence that indicates that continued groundwater withdrawals from a high-capacity well will exceed the recharge capability of the groundwater resource of the area, the director or the director of the department of agriculture and rural development, as appropriate, by order, may declare a groundwater dispute.

(3) The director or the director of the department of agriculture and rural development, as appropriate, may amend or terminate an order declaring a groundwater dispute at any time. Prior to amending an order declaring a groundwater dispute regarding an agricultural well under this subsection, the director of the department of agriculture and rural development shall schedule an informal meeting and provide notice of the informal meeting in the manner provided under section 31702a.

Sec. 31704. (1) Subject to subsections (2) and (4), an order declaring a groundwater dispute is effective when a copy of the order is served upon the owner of a high-capacity well that is reasonably believed to have caused the failure of the complainant’s small-quantity well.

(2) If a groundwater dispute requires action before service can be completed under subsection (1), oral notification in person by the director or the director of the department of agriculture and rural development, as appropriate, is sufficient until service can be completed. Oral notification is effective for not more than 96 hours.

(3) As soon as possible after an order declaring a groundwater dispute has been issued, the director or the director of the department of agriculture and rural development, as appropriate, shall provide copies of the order to the local units of government in which the high-capacity well and the small-quantity well are located and to the local health departments with jurisdiction over those wells.

(4) Within 14 days after service of an order under subsection (1), the owner of an agricultural well may contest the order by submitting an appeal to the commission of agriculture and rural development. The appeal shall be submitted on a form provided by the department of agriculture and rural development and shall outline the basis for the appeal. Upon receipt of an appeal under this subsection, the commission of agriculture and rural development shall schedule the appeal for consideration at the next scheduled meeting of the commission. Except for the provision of an adequate supply of potable water under section 31705(1), the terms of the order are stayed until a determination is made by the commission of agriculture and rural development regarding the appeal. At the commission’s meeting, the commission shall review the order and consider any testimony or other documentation contesting the order and shall make a determination to affirm the order or dismiss the order. If the commission of agriculture and rural development dismisses the order, the department of agriculture and rural development shall reimburse the appellant for the cost of providing potable water under section 31705.

Sec. 31705. (1) Upon declaration of a groundwater dispute, the director or the director of the department of agriculture and rural development, as appropriate, shall, by order, require the immediate temporary provision at the point of use of an adequate supply of potable water.

(2) Except as provided in subsections (3), (4), and (5), if the director or the director of the department of agriculture and rural development, as appropriate, issues an order declaring a groundwater dispute, the director or the director of the department of agriculture and rural development, as appropriate, may, by order, restrict the quantity of groundwater that may be extracted from a high-capacity well under either of the following conditions:

(a) If the high-capacity well is reasonably believed to have caused the failure of the complainant’s small-quantity well and an immediate temporary provision of an adequate supply of potable water has not been provided to the complainant by the owner of the high-capacity well.

(b) If there is clear and convincing scientifically based evidence that continued groundwater withdrawals from the high-capacity well will exceed the recharge capability of the groundwater resource of the area.

(3) In issuing an order under subsection (2), the director or the director of the department of agriculture and rural development, as appropriate, shall consider the impact the order will have on the viability of a business associated with the high-capacity well or other use of the high-capacity well.

(4) If an operator of a high-capacity well withdraws water by a means other than pumping, the director or the director of the department of agriculture and rural development, as appropriate, may, by order, temporarily restrict the quantity of groundwater that may be extracted only if the conditions of subsection (2)(a) or (b) have not been met.

(5) The director or the director of the department of agriculture and rural development, as appropriate, shall not issue an order that diminishes the normal supply of drinking water or the capability for fire suppression of a public water supply system owned or operated by a local unit of government.

Sec. 31706. If a groundwater dispute has been declared, the owner of a high-capacity well shall, subject to an order of the director or the director of the department of agriculture and rural development, as appropriate, provide timely and reasonable compensation as provided in section 31707 if there is a failure or substantial impairment of a small-quantity well and the following conditions exist:

(a) The failure or substantial impairment was caused by the groundwater withdrawals of the high-capacity well.

(b) The small-quantity well was constructed prior to February 14, 1967 or, if the small-quantity well was constructed on or after February 14, 1967, the well was constructed in compliance with part 127 of the public health code, 1978 PA 368, MCL 333.12701 to 333.12771.

Sec. 31708. Notwithstanding section 31704(4), the owner of a high-capacity well subject to an order under this part may appeal that order directly to circuit court pursuant to the revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947.

Sec. 31711. (1) Not later than April 1, 2013, and every 2 years thereafter, the department shall prepare and submit to the legislature a report that includes both of the following:

(a) An analysis of the department’s costs of implementing this part.

(b) Recommendations on modifications to this part that would improve the overall effectiveness of this part.

(2) The department shall file with the secretary of the senate and the clerk of the house of representatives a report that evaluates the effectiveness of the dispute resolution process during the 5-year period beginning on the effective date of the amendatory act that added this subsection. The report shall be filed within 90 days after the expiration of that 5-year period.

Sec. 31712. (1) A person who violates an order issued under this part is responsible for a civil fine of not more than $1,000.00 for each day of violation, but not exceeding a total of $50,000.00.

(2) A default in the payment of a civil fine or costs ordered under this section or an installment of the fine or costs may be remedied by any means authorized under the revised judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947.

(3) All civil fines recovered under this section shall be forwarded to the state treasurer for deposit into the fund.

(4) The director or the director of the department of agriculture and rural development, as appropriate, may bring an action in a court of competent jurisdiction to enforce an order under this part, including injunctive or other equitable relief.

Sec. 36201. As used in this part:

(a) “Agricultural conservation easement” means a conveyance, by a written instrument, in which, subject to permitted uses, the owner relinquishes to the public in perpetuity his or her development rights and makes a covenant running with the land not to undertake development.

(b) “Agricultural use” means substantially undeveloped land devoted to the production of plants and animals useful to humans, including forages and sod crops; grains, feed crops, and field crops; dairy and dairy products; poultry and poultry products; livestock, including breeding and grazing of cattle, swine, captive cervidae, and similar animals; berries; herbs; flowers; seeds; grasses; nursery stock; fruits; vegetables; Christmas trees; and other similar uses and activities. Agricultural use includes use in a federal acreage set-aside program, a federal conservation reserve program, or a wetland reserve program. Agricultural use does not include the management and harvesting of a woodlot.

(d) “Commission” means the commission of agriculture and rural development.

(e) “Department” means the department of agriculture and rural development.

(f) “Development” means an activity that materially alters or affects the existing conditions or use of any land in a manner that is inconsistent with an agricultural use.

(g) “Development rights” means an interest in land that includes the right to construct a building or structure, to improve land for development, or to divide a parcel for development purposes.

(h) “Farmland” means 1 or more of the following:

(i) A farm of 40 or more acres in 1 ownership, with 51% or more of the land area devoted to an agricultural use.

(ii) A farm of 5 acres or more in 1 ownership, but less than 40 acres, with 51% or more of the land area devoted to an agricultural use, that has produced a gross annual income from agriculture of $200.00 per year or more per acre of cleared and tillable land. A farm described in this subparagraph enrolled in a federal acreage set-aside program or a federal conservation reserve program is considered to have produced a gross annual income from agriculture of $200.00 per year or more per acre of cleared and tillable land.

(iii) A farm designated by the department as a specialty farm in 1 ownership that has produced a gross annual income of $2,000.00 or more from an agricultural use. Specialty farms include, but are not limited to, greenhouses; equine breeding and grazing; the breeding and grazing of cervidae, pheasants, and other game animals; bees and bee products; mushrooms; aquaculture; and other similar uses and activities.

(iv) Parcels of land in 1 ownership that are not contiguous but which constitute an integral part of a farming operation being conducted on land otherwise qualifying as farmland may be included in an application under this part.

(i) “Fund” means the agricultural preservation fund created in section 36202.

(j) “Grant” means a grant for the purchase of an agriculture conservation easement under this part.

(k) “Owner” means a person having a freehold estate in land coupled with possession and enjoyment. If land is subject to a land contract, owner means the vendee in agreement with the vendor.

(l) “Permitted use” means any use expressly authorized within an agriculture conservation easement consistent with the farming operation or that does not adversely affect the productivity of the farmland. Storage, retail or wholesale marketing, or processing of agricultural products is a permitted use in a farming operation if more than 50% of the stored, processed, or merchandised products are produced by the farm operator for at least 3 of the immediately preceding 5 years. Permitted use includes oil and gas exploration and extraction, but does not include other mineral development that is inconsistent with an agricultural use.

Sec. 36202. (1) The agricultural preservation 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, including federal funds, other state revenues, gifts, bequests, and other donations. The state treasurer shall direct the investment of the fund and shall credit to the fund interest and earnings from fund investments.

(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 be the administrator of the fund for auditing purposes.

(5) Money in the fund may be expended, upon appropriation, following approval of the board and the commission, as follows:

(a) Not more than $1,400,000.00 annually for the administrative costs of the department and the board in implementing this part and part 361.

(b) After expenditures for the administrative costs under subdivision (a), money in the fund may be used to provide grants to local units of government pursuant to section 36203.

(c) After expenditures under subdivisions (a) and (b) have been made, if the amount of money remaining in the fund exceeds $5,000,000.00, money in the fund may be used pursuant to part 361 for the purchase of development rights to farmland or the acquisition of agricultural conservation easements.

(6) Expenditures of money in the fund as provided in this part are consistent with the state’s interest in preserving farmland and are for an important public purpose.

This act is ordered to take immediate effect.

Clerk of the House of Representatives

Secretary of the Senate

Approved

Governor