Bill Text: MI SB0256 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Environmental protection; water pollution; storm water utilities; authorize local units to establish. Creates new act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2009-02-18 - Referred To Committee On Natural Resources And Environmental Affairs [SB0256 Detail]
Download: Michigan-2009-SB0256-Introduced.html
SENATE BILL No. 256
February 18, 2009, Introduced by Senator BIRKHOLZ and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to authorize local units of government to create storm
water utilities; to permit the establishment and collection of
storm water utility fees and storm water system development
charges; to provide for the allocation to property of the costs of
planning, constructing, operating, maintaining, financing, and
administering storm water systems; to authorize the adoption of
storm water utility ordinances; to provide for credits, exemptions,
and appeals; and to prescribe the powers and duties of certain
local governmental officers and entities.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. The legislature finds all of the following:
(a) Sections 51 and 52 of article IV of the state constitution
of 1963 provide that the legislature shall pass suitable laws for
the protection and promotion of the public health and that the
conservation of natural resources of the state is of paramount
public concern in the interest of the health, safety, and general
welfare of the people of this state.
(b) Improper management of storm water runoff causes erosion
of lands; threatens businesses and residences and other facilities
with water damage from flooding; adversely impacts public health,
safety, and welfare; and creates environmental damage to rivers,
streams, and other bodies of water in Michigan, including the Great
Lakes.
(c) The constitution and laws of this state authorize local
units of government to provide storm water management services and
systems that will contribute to the protection and preservation of
the public health, safety, and welfare, and to the protection of
this state's natural resources.
(d) Control of the quantity and quality of storm water flow
from developed and undeveloped property is essential to protect and
improve the quality of surface and groundwater in this state,
thereby protecting its natural resources and the health, safety,
and welfare of its citizens.
(e) It is in the interest of protecting both the waters of the
state from pollution and the public health, safety, and welfare to
enable local units of government to fund storm water management
with a user fee system that allocates the costs of these services
to property owners in a local unit of government based upon the
extent to which each parcel of real property contributes to the
need for storm water management.
(f) The federal clean water act and rules and regulations
promulgated thereunder place increased mandates on local units of
government to develop, implement, conduct, and make available to
their citizens and property owners storm water management services
that address water quality, velocity, and volume impacts of storm
water runoff.
(g) The national pollutant discharge elimination system
regulations promulgated under the federal clean water act require
local units of government to, among other things, submit permit
applications for municipal separate storm sewer systems and
implement controls and improvements to storm water management
systems, which controls and improvements require substantial
capital outlay on the part of local units of government.
(h) It is the intent of the legislature to provide a mechanism
by which local units of government under existing authorities may
establish a system of true user fees and charges to defray the
costs of implementing a regulatory program to manage storm water.
Sec. 2. This act shall be known and may be cited as the "storm
water utility act".
Sec. 3. As used in this act:
(a) "Fund" means the storm water enterprise fund established
by a local unit of government pursuant to section 9.
(b) "Impervious area" means a surface area that is compacted
or covered with material such as asphalt or concrete, so as to be
resistant to permeation by surface water, including, but not
limited to, most conventionally surfaced streets, roofs, sidewalks,
patios, driveways, and parking lots.
(c) "Local unit of government" means a city, village,
township, or county.
(d) "Operation and maintenance costs" means all costs, direct
and indirect, of materials, labor, professional services,
utilities, and other items for the management and uninterrupted
operation of a storm water system in a manner for which the storm
water system was designed and constructed.
(e) "Storm water" means that term as defined in 40 CFR
122.26(b)(13).
(f) "Storm water management" means 1 or more of the following:
(i) The quantitative control through the storm water system of
the increased volume and rate of surface runoff caused by
impervious areas.
(ii) The qualitative control of storm water through the storm
water system, pollution prevention activities, and ordinances to
reduce, eliminate, or treat pollutants that might otherwise be
carried by storm water.
(iii) Public education, information, and outreach programs
concerning the potential impacts of storm water pollution on water
quality.
(g) "Storm water management plan" means a plan described in
section 5.
(h) "Storm water management program" means 1 or more aspects
of storm water management undertaken by a local unit of government
to comply with applicable federal or state law or to protect the
public health, safety, and welfare.
(i) "Storm water system" means roads, streets, catch basins,
curbs, gutters, ditches, storm sewers and appurtenant features,
lakes, ponds, channels, swales, storm drains, canals, creeks,
streams, gulches, gullies, flumes, culverts, siphons, retention or
detention basins, dams, floodwalls, levees, pumping stations, and
other similar facilities, and natural watercourses and features
that are located within the geographic limits of a local unit of
government and are designed or actively managed by the local unit
of government for collecting, storing, treating, or conveying storm
water.
(j) "Storm water system development charge" or "charge" means
a charge provided for under section 6(1).
(k) "Storm water utility fee" or "fee" means a charge provided
for under section 8.
(l) "Storm water utility ordinance" means an ordinance adopted
by the governing body of a local unit of government pursuant to
section 4(1).
Sec. 4. (1) Subject to subsection (2), a local unit of
government may adopt a storm water utility ordinance under this
act. A storm water utility ordinance may provide for a storm water
system development charge or a storm water utility fee, or both, on
real property located within that local unit of government to
finance a storm water management program.
(2) Before adopting a storm water utility ordinance, the
legislative body of a local unit of government shall by resolution
adopt a storm water management plan. The storm water utility
ordinance shall be consistent with the storm water management plan.
Sec. 5. (1) A storm water management plan shall contain at
least all of the following elements:
(a) Geographic limits of storm water management districts. A
storm water management district shall encompass property with
similar cost of service characteristics and uses. A storm water
management district may consist of all of the territory of the
local unit of government, or a portion of the territory of the
local unit of government, or all or a portion of the territory of 2
or more local units of government that have agreed to jointly
manage storm water within that district.
(b) Storm water management services to be provided to each
storm water management district.
(c) The planning period covered by the storm water management
plan.
(d) Projected expenses of the storm water management program
within each storm water management district for each year of the
storm water management plan planning period as well as steps taken
to reduce expenses.
(e) Documentation of an analysis undertaken to evaluate the
comparative cost-effectiveness of storm water management
alternatives.
(f) Projected impervious area and, if applicable under section
8(6), total area of each class of property within each storm water
management district.
(g) The method of calculating any storm water utility fees and
storm water development charges proportionate to the necessary cost
of providing the necessary level of storm water management
services.
(h) The process and method by which the local unit of
government will determine which properties will be subject to any
storm water utility fee for use of a storm water system owned and
operated by the local unit of government, as required under section
11(1).
(i) A description of the components of the storm water system
owned and operated by the local unit of government.
(j) A description of how the credits under section 10 to
reduce storm water utility fees will be applied and calculated.
(2) Before adopting a storm water management plan, a local
unit of government shall hold a public hearing on the proposed
plan. The local unit of government shall give notice of the hearing
by publication in a newspaper of general circulation within the
local unit of government at least 14 days before the hearing. The
notice shall include the time and place of the hearing and shall
state the place where a copy of the proposed storm water management
plan is available for public inspection. In addition, if the local
unit of government has a website, the proposed storm water
management plan shall be posted on the website and the notice shall
provide the local unit of government's website address. This
subsection does not apply to the adoption of a storm water
management plan before the effective date of this act.
(3) Any storm water management plan may be extended or
otherwise amended by resolution subject to the procedure set forth
in subsection (2).
Sec. 6. (1) A storm water utility ordinance may provide for a
storm water development charge. The storm water development charge
is a 1-time charge to newly developed real property to finance the
capital costs of components of the public storm water system needed
to serve that property.
(2) Revenue from a storm water system development charge shall
be deposited in the fund.
Sec. 7. A storm water system development charge shall be
computed based on 1 or both of the following methods:
(a) The modified property's proportionate share of the local
unit of government's necessary cost to expand the storm water
system to manage the additional storm water from that property.
(b) The modified property's proportionate share of the local
unit of government's capital investment in the storm water system.
The modified property's proportionate share shall be calculated
consistent with the method used by the local unit of government to
calculate storm water utility fees as described in section 8.
Sec. 8. (1) A storm water utility ordinance may impose a storm
water utility fee on real property. Revenue from a storm water
utility fee shall be deposited in the fund and used for the
purposes described in section 9.
(2) A storm water utility ordinance shall describe the method
or methods used to determine any storm water utility fee.
(3) A local unit of government may develop a corresponding
storm water utility fee, calculation method, or both for each storm
water management district described in the storm water management
plan under section 5(1)(a).
(4) A storm water utility fee shall be proportionate to the
necessary cost of providing storm water management to each property
in a storm water management district taking into account revenue
collected from any storm water system development charge or other
existing charge or assessment for providing storm water management
to that property.
(5) A storm water utility ordinance may define rate categories
for properties where the proportionate cost of providing service is
similar. Each property within a rate category shall be charged the
same storm water utility fee.
(6) The storm water management plan shall demonstrate that any
storm water utility fee or portion thereof charged to a property,
for those elements of the storm water management program whose cost
is directly related to the amount of storm water managed and is not
covered by storm water development charges or other revenue, is
proportionate to the amount of storm water generated by that
property. The method for determining a storm water utility fee
shall be based on the storm-water-generating characteristics of
either individual properties or all properties within a rate
category. A local unit of government's cost for storm water
management attributable to each individual property shall be
calculated using 1 or more methods generally accepted by licensed
professional engineers, including, but not limited to, the
following methods:
(a) Impervious area: a method that calculates a property's
storm water contribution based solely on the impervious area of the
property.
(b) Equivalent residential unit or equivalent service unit: a
method that calculates a property's storm water contribution based
solely on the impervious area of the property in comparison to the
impervious area associated with all single- and multifamily
residential properties within the geographic limits of the
district.
(c) Single-family residential unit: a method that calculates a
property's storm water contribution based solely on the impervious
area of the property in comparison to the impervious area of a
typical single-family residence within the geographic limits of the
district.
(d) Intensity of development: a method that calculates the
property's storm water contribution based on the total area of the
property multiplied by 1 of several rate categories. Each rate
category includes those properties with statistically similar
storm-water-generating characteristics, with the storm water
utility fee proportionate to the percentage of the property's
impervious area to its total area.
(e) Equivalent hydraulic area: a method that calculates the
property's storm water contribution as follows:
(i) Multiply the impervious area of the property by a storm
water runoff factor.
(ii) Multiply the pervious area of the property by a storm
water runoff factor.
(iii) Add the products under subparagraphs (i) and (ii).
(7) The storm water management plan shall demonstrate that any
storm water utility fee or portion thereof charged to a property,
for those elements of the storm water management program whose cost
is not directly related to the amount of storm water managed and is
not covered by storm water development charges or other revenue, is
proportionate to the necessary cost of implementing the storm water
management program.
Sec. 9. (1) A storm water utility ordinance that establishes a
storm water utility fee or a storm water system development charge
shall establish a storm water enterprise fund. All revenue from
storm water utility fees and storm water system development charges
shall be deposited in the storm water enterprise fund. The
treasurer of the local unit of government may receive money or
other assets from any other source for deposit into the storm water
enterprise fund. Money in the fund shall be invested pursuant to
1943 PA 20, MCL 129.91 to 129.97a. The 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 of the local unit of
government.
(2) The treasurer of the local unit of government shall expend
money from the storm water enterprise fund, upon appropriation,
only to defray the local unit of government's cost of implementing
a storm water management program including, but not limited to, the
following:
(a) Operation and maintenance costs and costs of planning,
engineering, acquiring, constructing, installing, improving, and
enlarging a storm water system, including financing and debt
service costs together with indirect and overhead costs that are
fairly chargeable to such activities pursuant to applicable
accepted accounting principles and practices, including practices
required under the uniform budgeting and accounting act, 1968 PA 2,
MCL 141.421 to 141.440a.
(b) Administering the storm water management program.
(c) Developing a storm water management plan.
(d) Undertaking activities required in order to comply with
federal and state law and regulations related to storm water and
permits issued thereunder.
(e) Paying drain assessments that are the obligation of the
local unit of government under the drain code of 1956, 1956 PA 40,
MCL 280.1 to 280.630.
(f) Providing public education, information, or outreach
programs related to the storm water management plan or required by
federal or state regulations, or required by permits issued to the
local unit of government by federal or state regulatory bodies.
Sec. 10. (1) Subject to subsection (2), a storm water utility
ordinance that imposes a storm water utility fee shall grant
credits that reduce the storm water utility fee calculated for a
parcel of property for any activities or conditions that reduce the
cost of service to the storm water system or are reasonably related
to a benefit to the storm water system provided by that property or
its owner or occupant, including, but not limited to, all of the
following:
(a) On-site retention or detention facilities.
(b) Increased landscape and vegetative control practices.
(c) Direct drainage of the property to waters of this state.
(d) The degree of permeability of the surfaces on the
property.
(e) Filtering systems such as catch basins or filter strips.
(f) Components of the storm water system that manage upstream
or off-site storm water.
(g) Facilities that reuse storm water for irrigation or other
on-site purposes.
(h) Public education or information programs conducted by the
property owner or occupant related to storm water management and
its impacts.
(i) Other components of the storm water system, programs, or
activities that result in a measurable reduction in storm water
runoff or pollutant loadings.
(2) A credit under subsection (1) shall be proportionate to
the reduction of the cost of service to the storm water system or
to the benefit provided to the storm water system.
Sec. 11. (1) Property shall not be subject to a storm water
utility fee or storm water system development charge unless the
local unit of government in the storm water management plan
demonstrates that the property utilizes the storm water system.
(2) The local unit of government shall provide the owner of
property initially determined to be subject to a storm water
utility fee or storm water system development charge under
subsection (1) with the opportunity to present evidence that the
property does not utilize the storm water system and is therefore
exempt from the storm water utility fee or storm water system
development charge. The storm water utility ordinance shall set
forth the procedure for a property owner to claim such an
exemption.
(3) A storm water utility ordinance that establishes a storm
water utility fee or storm water system development charge shall
provide that when additional property begins to utilize the storm
water system, a storm water utility fee or storm water system
development charge accrues, as determined by the local unit of
government.
Sec. 12. A storm water utility ordinance shall provide for an
entity within the local unit of government that will administer the
storm water utility and shall define the administrative duties. A
storm water utility ordinance shall establish a set of
administrative policies and procedures or authorize the
administrator to establish the administrative policies and
procedures. The administrative policies and procedures shall
include at least the following topics, as applicable:
(a) Subject to section 15, criteria used to determine whether
a storm water utility fee will be billed to the property owner or
occupant and how to allocate the storm water utility fee to
multiple occupants of a single property.
(b) Procedures for updating billing data based upon changes in
property boundaries, ownership, and storm water runoff
characteristics.
(c) Billing and payment procedures of the storm water utility
that define the billing period, billing methodology, and penalties.
(d) Policies establishing the type and manner of service that
will be provided by the storm water utility.
(e) Regulations governing the resolution of storm water
management disputes that arise between property owners within the
district.
(f) Procedures for granting and modifying any credits
authorized pursuant to section 10.
(g) Procedures for appeals as described in section 14.
(h) Enforcement policies and procedures.
Sec. 13. (1) A storm water utility ordinance shall establish
remedies for any unpaid storm water utility fees and storm water
system development charges as described in this section.
(2) A storm water utility fee or storm water system
development charge may be a lien on the property on which the fee
is imposed. Fees or charges delinquent for 6 months or more may be
certified annually to the proper tax assessing officer or agency.
An officer or agency to whom fees are certified shall enter the
liens on the next tax roll against the respective parcels of
property. The fees or charges shall be collected and the lien shall
be enforced in the same manner as provided for the collection of
taxes assessed upon the roll and the enforcement of the lien for
such taxes. The lien is superior to all other liens except tax
liens. The time and manner of certification and other details
regarding the collection of fees or charges and the enforcement of
the lien shall be prescribed by the storm water utility ordinance.
(3) A lien for a storm water utility fee shall not be
certified under subsection (2) if the clerk of the local unit of
government has been notified that an occupant of the property other
than the owner is responsible for the payment of the storm water
utility fee. The notice shall be accompanied by a copy of the
lease, if any, under which the occupant possesses the property and
a cash deposit in an amount specified by the storm water utility
ordinance as security for the payment of the delinquent amount.
(4) A local unit of government may collect a storm water
utility fee or storm water system development charge by any lawful
method, including any method authorized under the revised
judicature act of 1961, 1961 PA 236, MCL 600.101 to 600.9947.
(5) A partial payment of delinquent storm water utility fees
or storm water system development charges shall be applied to the
oldest delinquent fees or charges, and remaining fees or charges
may continue to accrue interest and penalties.
Sec. 14. (1) A storm water utility ordinance or the
administrative policies and procedures adopted under the ordinance
shall provide a procedure for appeals and the adjustment of any
storm water utility fee or storm water system development charge
that includes at least all of the following:
(a) A property owner or occupant liable for a storm water
utility fee or storm water system development charge may appeal the
fee or charge to the local unit of government.
(b) An appeal of a storm water utility fee or storm water
system development charge shall not be brought more than 1 year
after the fee or charge was billed.
(c) For an appeal of a storm water utility fee to be
successful, the appellant shall demonstrate that the amount of
storm water generated by the property is materially less than the
amount used by the local unit of government in the calculation of
that property's storm water utility fee or that there was a
mathematical error in the calculation.
(d) If the local unit of government finds that the
requirements for a successful appeal under subdivision (c) have
been met, the sole remedy to the property owner is a correct
recalculation of the storm water utility fee.
(e) If in an appeal of a storm water utility fee a local unit
of government finds that the requirements of subdivision (c) have
not been met, that finding is conclusive with respect to that
property for 7 years. The property owner remains eligible for
credits and exemptions under the storm water utility ordinance.
(f) A property owner or occupant making an appeal shall
provide information necessary to make a determination.
(2) A person aggrieved by a decision of the local unit of
government on an appeal under this section may appeal to the
circuit court.
Sec. 15. Notwithstanding section 13(3), a local unit of
government's storm water utility ordinance shall provide that a
property owner is liable for payment of any storm water utility fee
even if the property owner has authorized the local unit of
government to bill storm water utility fees to an occupant of the
property other than the owner.
Sec. 16. This act does not expand existing authority of local
units of government.
Enacting section 1. This act takes effect January 1, 2010.
Enacting section 2. It is the intent of the legislature that
the senate or house of representatives request the supreme court by
concurrent resolution, pursuant to section 8 of article III of the
state constitution of 1963, for an opinion on the constitutionality
of this act if the governor has not already requested an opinion.
