HB-4678, As Passed House, June 6, 2013

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4678

 

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 31701, 31702, 31703, 31704, 31705, 31706,

 

31708, 31711, and 31712 (MCL 324.31701, 324.31702, 324.31703,

 

324.31704, 324.31705, 324.31706, 324.31708, 324.31711, and

 

324.31712), as added by 2012 PA 602.

 

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

 

used for an agricultural purpose.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" means either of the following:

 

     (i) The owner of an interest in property.

 

     (ii) A person in possession of property.

 

     (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) (n) "Potable water" means water that at the point of use

 

is acceptable for human consumption.

 

     (q) (o) "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) (p) "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) (q) "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 defines 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. However, if the owner of the

 

high-capacity well notifies the department that he or she does not

 

wish to participate in the dispute resolution process provided for

 

in this part, the investigation shall be suspended and the dispute

 

shall be resolved as otherwise provided by law.

 

     (4) Within 5 business days after receipt of a complaint under

 

subsection (1), 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 the department 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. If, within 14 days following the

 

submittal of a complaint, the director of the department of

 

agriculture and rural development is unable to resolve a complaint,

 

the director of the department of agriculture and rural development

 

shall refer the complaint, and provide all relevant information, to

 

the director.

 

     (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. 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.

 

     (c) That the failure of the small-quantity well was caused by

 

the lowering of the groundwater level in the area.

 

     (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.

 

     Sec. 31704. (1) An 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. The 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.