Bill Text: MI SB1177 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Water; other; groundwater dispute resolution program; restore. Amends 1994 PA 451 (MCL 324.101 - 324.90106) by adding pt. 317.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Engrossed - Dead) 2010-09-29 - Referred To Committee On Great Lakes And Environment [SB1177 Detail]
Download: Michigan-2009-SB1177-Engrossed.html
SB-1177, As Passed Senate, September 28, 2010
SENATE BILL No. 1177
February 25, 2010, Introduced by Senators KAHN, BIRKHOLZ, STAMAS and RICHARDVILLE and referred to the Committee on Natural Resources and Environmental Affairs.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding part 317.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 317
AQUIFER PROTECTION AND DISPUTE RESOLUTION
Sec. 31701. As used in this part:
(a) "Agricultural well" means a high-capacity well that is
used for an agricultural purpose.
(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 natural resources and
environment.
(e) "Dewatering well" means a well or pump 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 of natural
resources and environment 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 under section 31703.
(k) "High-capacity well" means 1 or more water wells
associated with an industrial or processing facility, an irrigation
facility, a farm, or a public water supply system 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.
(n) "Potable water" means water that at the point of use is
acceptable for human consumption.
(o) "Public water supply system" means a water system that
provides water for human consumption or other purposes to persons
other than the supplier of water.
(p) "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.
(q) "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.
(r) "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 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
(5), or via other means of electronic submittal as developed by the
department. However, the director or the director of the department
of agriculture 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 the location of that well.
(c) 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.
(d) The date or dates on which the interference by a high-
capacity well occurred.
(e) 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 (5) 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, as appropriate, shall contact the complainant and
begin an investigation. Within 5 business days after receipt of a
complaint under subsection (1), the director or the director of the
department of agriculture, as appropriate, shall conduct an 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 need not conduct an on-site
evaluation unless the department determines that an on-site
evaluation is necessary. If the director or the director of the
department of agriculture, as appropriate, considers it necessary
for an investigation under this subsection, he or she may request
that the owner of the small-quantity well provide a written
assessment by a well drilling contractor that the small-quantity
well failure was not the result of well failure or equipment
failure. The assessment shall include a determination of the static
water level in the well at the time of the assessment and, if
readily available, the type of pump and equipment. The director or
the director of the department of agriculture, 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, as
appropriate, shall consider whether the owner of the high-capacity
well is using industry-recognized water conservation management
practices.
(4) After conducting an investigation, the director or the
director of the department of agriculture, 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, 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 is unable to resolve a complaint, the
director of the department of agriculture shall refer the
complaint, and provide all relevant information, to the director.
(5) The director shall provide for the use of a toll-free
facsimile telephone 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.
(6) The director and the director of the department of
agriculture shall do both of the following:
(a) Publicize the toll-free facsimile line and the toll-free
telephone line provided for in subsection (5).
(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.
(7) A complainant who submits more than 2 unverified
complaints under this section within 1 year may be ordered by the
director 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 determines that there is not reasonable evidence to
declare a groundwater dispute.
Sec. 31703. (1) The director 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 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 under section 31702(4).
(2) In addition to the authority under subsection (1) to
declare a groundwater dispute, if the director 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, by order, may declare a groundwater dispute.
(3) The director may amend or terminate an order declaring a
groundwater dispute at any time.
Sec. 31704. (1) 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 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 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.
Sec. 31705. (1) Upon declaration of a groundwater dispute, the
director 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 issues an order declaring a groundwater dispute, the
director 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
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 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 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. (1) If a groundwater dispute has been declared,
the owner of a high-capacity well shall, subject to an order of the
director, 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.
(2) In addition to the timely and reasonable compensation
required under subsection (1), if a groundwater dispute has been
declared, the owner of a high-capacity well shall reimburse the
director an amount equal to the actual and reasonable costs
incurred by the director in investigating and resolving the
groundwater dispute, not to exceed $75,000.00. Money received by
the director under this subsection shall be forwarded to the state
treasurer for deposit into the fund.
Sec. 31707. (1) Timely and reasonable compensation under
section 31706 consists of and is limited to either or both of the
following:
(a) The reimbursement of expenses reasonably incurred by the
complainant beginning 30 days prior to the date on which a
complaint was made under section 31702 in doing the following:
(i) Paying for the cost of conducting a well assessment to
determine that the small-quantity well and the well's equipment
were functioning properly at the time of the failure.
(ii) Paying for the cost of obtaining an immediate temporary
provision at the prior point of use of an adequate supply of
potable water.
(iii) Obtaining 1 of the following:
(A) The restoration of the affected small-quantity well to the
well's normal supply of water.
(B) The permanent provision at the point of use of an
alternative potable supply of equal quantity.
(b) If an adequate remedy is not achievable under subdivision
(a), the restriction or scheduling of the groundwater withdrawals
of the high-capacity well so that the affected small-quantity well
continues to produce either of the following:
(i) The well's normal supply of water.
(ii) The normal supply of potable water if the well normally
furnishes potable water.
(2) The refusal of an owner of an affected small-quantity well
to accept timely and reasonable compensation described in
subsection (1) is sufficient grounds for the director to terminate
an order imposed on the owner of a high-capacity well.
Sec. 31708. 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. 31709. This part does not apply to a potential
groundwater dispute involving any of the following:
(a) A high-capacity well owned or operated by a local unit of
government if the local unit of government agrees to make the
aggrieved property owner whole by connecting the owner's property
to the local unit of government's public water supply system or by
drilling the owner a new well, with the installation costs paid by
the local unit of government.
(b) A high-capacity well associated with a public water supply
system that is owned or operated by a local unit of government if
the recharge area of the water well is protected by a wellhead
protection program approved by the department under the state's
wellhead protection program.
(c) A high-capacity well that is a dewatering well.
(d) A high-capacity well that is used solely for the purpose
of fire suppression.
Sec. 31710. (1) The aquifer protection revolving fund is
created in the state treasury.
(2) The fund may receive money or other assets from any source
for deposit into the fund. The state treasurer shall direct the
investment of the fund. The state treasurer shall credit to the
fund interest and earnings from fund investments.
(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 shall be expended by the department only
to implement this part.
(6) If money in the fund is used to conduct hydrogeological
studies or other studies to gather data on the nature of aquifers
or groundwater resources in the state, the department shall include
this information in the groundwater inventory and map prepared
under section 32802.
Sec. 31711. Not later than April 1, 2010, and every 2 years
thereafter, the department shall prepare and submit to the standing
committees of the senate and the house of representatives a report
that includes both of the following:
(a) An analysis of the department's costs of implementing this
part and whether the limitation on reimbursable costs under section
31706(2) should be modified.
(b) Recommendations on modifications to this part that would
improve the overall effectiveness of this part.
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 general fund.
(4) The director may bring an action in a court of competent
jurisdiction to enforce an order under this part, including
injunctive or other equitable relief.
