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Published in Michigan Environmental Law Journal, Spring–Summer 2016, Vol. 34, No. 1, Issue 101 [view full issue].
Cite: 34 Mich Env Law J 1 (2016)

2015 Michigan Public Acts—Environment & Natural Resources

by Christopher J. Dunsky, Christopher J. Dunsky, PLLC

Like 2014, 2015 was relatively quiet for legislation affecting the Michigan Natural Resources and Environmental Protection Act (NREPA). The most significant changes affected Part 121 (Liquid Industrial Waste) and the Renewable Operating Permit Program under Part 55 (Air Pollution Control) of NREPA.

The following summarizes Michigan Public Acts adopted in calendar year 2015 that pertain to environmental and natural resource issues.

1. Environmental Protection
   1. Liquid Industrial Wastes (nka Liquid Industrial By-Products)

The legislature enacted three tie-barred bills regarding liquid industrial wastes.

PA 224 amended Part 121 (Liquid Industrial Wastes) of NREPA to do the following:

• Change the title of Part 121 to "Liquid Industrial By-Products," and refer to liquid industrial by-product rather than liquid industrial waste throughout Part 121.
• Exclude from classification as a liquid industrial by-product a material that is used or reused as an ingredient to make a product and meets certain other criteria.
• Eliminate requirements that a generator of liquid industrial by-product use a site identification number when arranging for transportation of the by-product and pay the Department of Environmental Quality (DEQ) a $50 fee for each number the generator uses.
• Require a generator to mark containers and tanks of by-product to identify their contents.
• Refer to a shipping document rather than a manifest in record-keeping requirements for shipments of liquid industrial by-product, and revise the requirements.
• Allow certain required records to be maintained in an electronic format.
• Allow a transporter to dispose of septage waste or liquid industrial by-product on land if authorized by the DEQ.
• Require the owner or operator of a disposal, treatment, storage, or reclamation facility to maintain a plan to respond to and minimize hazards from unplanned releases of liquid industrial by-product, document that employees responsible for managing by-product were trained in proper handling and emergency procedures, and report annually to the DEQ.
• Authorize the Attorney General to bring a civil action against a person for violating Part 121, and allow a court to impose a maximum civil fine of $10,000 per violation.
• Include the costs of surveillance and enforcement by the state among the amounts that may be recovered from a violator who has damaged or destroyed natural resources.

(MCL 324.12101 et seq.) (effective date March 16, 2016).

PA 225 amended the Hazardous Materials Transportation Act (HMTA), MCL 29.471 et seq., to do the following:

• Revise references to certain government entities responsible for oversight of motor carriers transporting hazardous materials.
• Refer to liquid industrial by-product rather than liquid industrial waste in a provision that exempts certain motor carriers from the HMTA's registration and permitting requirements, but specifies that these motor carriers remain subject to Part 121 of NREPA and any other applicable law.

(MCL 29.472 and .473) (effective date March 16, 2016).

PA 226 amended the sentencing guidelines in the Code of Criminal Procedure to reflect the changes made by Public Act 224 and to revise references to other sections of NREPA involving hazardous material violations. (MCL 777.13c) (effective date March 16, 2016).

2. Renewable Operating Permit program for air emissions is continued; fees for major sources are increased.

PA 60 amended Part 55 (Air Pollution Control) of NREPA to delay the sunset on fees for the Renewable Operating Permit (ROP) program by four years from October 1, 2015, to October 1, 2019. Approximately 800 large Michigan facilities pay fees under the ROP program. Additionally, 740 smaller facilities, mostly dry cleaners and parts degreasing shops, pay a flat $250 fee. The act increases total revenue received by the DEQ under the ROP program by approximately $1.2 million annually as a result of increased fees for major facilities. Fees for smaller facilities are not changed. (MCL 324.5522) (effective date October 1, 2015).

3. Fees for groundwater discharge permits are increased.

PA 247 amends Part 31 (Water Resources Protection) of NREPA to: (1) create a new category of facilities for the purpose of issuing groundwater discharge permits; (2) delay the sunset date for groundwater discharge permit fees from December 31, 2015, to September 30, 2019; and (3) adjust the fee schedule for annual groundwater discharge permits.

DEQ rules define three categories of groundwater discharge permits delineated by size and type. Group 1 facilities are the largest, followed by Groups 2 and 3.

Public Act 247 reclassifies certain types of facilities currently classified as Group 2 into a new Group 2a. These facilities are:

• Coin operate laundromats.
• Public car washes or vehicle washes.
• Subsurface sanitary discharges of fewer than 10,000 gallons per day that do not meet the terms for authorization under Rule 323.2211(a). (Rule 323.2211(a) authorizes the discharge of sanitary sewage not exceeding a daily flow of 10,000 gallons if particular requirements are met.)
• Seasonal sanitary discharges from a recreational vehicle park or campground, recreational or vacation camp, or public park.

Finally, the act adjusts the annual groundwater discharge fees for all four discharge categories. Beginning October 1, 2016, fees increase to $3,910, $1,607, $260, and $248 for Groups 1, 2, 2a, and 3, respectively. Municipalities with a population of 1,000 or fewer pay a $1,607 fee. These fees will sunset on September 30, 2019. (MCL 324.3101 and 324.3122) (effective date December 22, 2015).

4. Fees are continued for projects in inland lakes and streams.

PA 76 amends various parts of NREPA to delay the sunset on five types of permit fees collected by DEQ's Water Resources Division. Each of the fees would have sunset on October 1, 2015. PA 76 delays the sunset date until October 1, 2019.

• Any project requiring a permit under Part 301 (Inland Lakes and Streams) is subject to an application fee of $50 to $2,000, depending on the type and scope of the project.
• A person who wishes to engage in a pre-application meeting with the DEQ regarding a proposed permit or permit application in process under Part 301 is subject to a fee ranging from $100 to $1,000, depending on the size and scope of the project.
• A $500 service fee is charged to any person who wishes to establish the ordinary high water mark for his or her property.
• Under Part 323 (Shorelands Protection and Management), if rules require a permit in certain types of high-risk or flood risk areas, an application fee of $50 to $500 is charged, depending on the type of project.
• Any project requiring a permit under Part 325 (Great Lakes Submerged Lands) is subject to an application fee of $50 to $2,000, depending on the type and scope of the project.

(MCL 324.30101 et al.) (effective date October 1, 2015).

5. Fees are continued for water pollution, solid waste, recycling, and expedited sewerage review process.

PA 82 amends the NREPA to delay the sunset on eight types of DEQ permit fees that were to have sunset on October 1, 2015. The act generally delays the sunset until October 1, 2019, except that the sunset date for groundwater discharge permit fees is extended until October 1, 2016.

The eight types of fees affected by the act are:

• Floodplain Permit Fees
• Storm Water Discharge Permit Fees
• Surface Water Discharge Permit Fees
• Groundwater Discharge Permit Fees
• Expedited Sewer Permit Fees
• Solid Waste Surcharge (Tipping Fees)
• Electronic Device Manufacturer Registration Fees
• Electronic Device Recycler Registration Fees

(MCL 324.30104 et al.) (effective date October 1, 2015).

2. Natural Resources
   1. The use of unmanned vehicles or devices to interfere with hunting or fishing by others, or to take game or fish, is now prohibited.

PA 12 and PA 13 address concerns that some people may use unmanned aerial vehicles (UAVs) or unmanned submersible vehicles to disrupt lawful hunting and fishing. Although there have been no documented cases of this activity in Michigan, an animal protection group reportedly began encouraging users to use drones to monitor potentially illegal activity. Some believe that these devices could be used to interfere with lawful hunting or fishing. There is also concern that hunters or anglers could use UAVs or unmanned submersible vehicles to aid in taking game or fish. Many hunters believe that this would violate fair-chase principles and take away from the spirit and tradition of ethical hunting and fishing.

Public Act 12 amends Part 401 (Wildlife Conservation) of NREPA to prohibit the use of unmanned vehicles, unmanned flying devices, and unmanned vehicles that operate on the surface of the water or underwater, to interfere with or harass an individual who is lawfully taking an animal or fish.

Public Act 13 amends Part 401 to prohibit the taking of game using unmanned vehicles, unmanned flying devices, and unmanned vehicles that operate on the surface of the water or underwater.

An individual who violates either prohibition is subject to misdemeanor penalties. (MCL 324.40112 and 48703a) (effective date July 13, 2015); (MCL 324.40111c) (effective date July 13, 2015).

2. Hunting from personal assistive mobility devices is permitted; transporting crossbows in vehicles is restricted.

PA 185 amends Part 401 (Wildlife Conservation) of NREPA to allow an individual who holds a valid permit to hunt from a standing vehicle to transport or possess an uncased firearm with a loaded magazine on a "personal assistive mobility device" if the action is open. PA 185 defines "personal assistive mobility device" as any device that is designed solely for use by an individual with mobility impairment for locomotion and is considered an extension of the individual. The Department of Natural Resources already had authority to permit an individual who is a paraplegic or amputee, or is otherwise permanently disabled, to hunt from a standing vehicle.

An individual with a valid permit to hunt from a standing vehicle may also possess a loaded firearm, and may discharge that firearm to take game from a personal assistive mobility device if: a) the device is not moving, and b) the individual holds a valid base license, holds any other necessary license, and complies with all other laws and rules for the taking of game.

Part 401 prohibits a person from transporting or possessing a bow in or upon a vehicle, unless the bow is unstrung, enclosed in a case, or carried in the trunk of a vehicle. The prohibition applies while the vehicle is operated on public land or on a highway, road, or street. PA 185 extends this restriction to include crossbows.

Part 401 prohibits an individual from hunting within 150 yards of an occupied building, dwelling, house, or building used in connection with a farm operation, without the written permission of the owner or occupant of the property. PA 185 clarifies that this prohibition applies to hunting with a firearm. (MCL 324.40111) (effective date January 1, 2016).

3. Restitution amounts and penalties for illegally killing or possessing certain game are increased.

PA 187 and PA 188: Potential sanctions for illegal hunting include payment of restitution to the state for an animal that is illegally killed, possessed, purchased, or sold, as well as prohibitions against holding a hunting license. Before Public Act 187, in most cases, the amount of restitution ranged from $100 to $1,500 per animal, and the violator was subject to a license prohibition of three years. Some people believe that those restitution amount and the license sanction did not adequately penalize violators or provide an adequate deterrent.

Public Act 187 amends Part 401 (Wildlife Conservation) of NREPA to increase the restitution amount that an individual must pay to the state if he is convicted of illegally killing, possessing, purchasing, or selling elk, moose, bear, eagle, turkey or waterfowl. The new restitution amounts are as high as $5,000 for an elk or moose and $3,500 for a bear.

Public Act 188 amends Part 401 to:

• Increase the number of years an individual is prohibited from securing or possessing a hunting license if he or she is convicted of illegally killing, possessing, purchasing, or selling a bear or turkey, or possessing or taking an elk or moose. The ban for a first offense affecting an elk or a moose is extended from 3 years to 15 years; the ban for a second such offense is extended from 3 years to life.
• Allow a court, at its discretion, to issue a longer hunting license ban for a person convicted of using artificial light to take game.
• Provide that an individual who willfully used an illegally constructed snare or cable restraint would be guilty of a misdemeanor.

(MCL 324.40104) (effective date February 14, 2016); (MCL 324.40119, 324.40118, 777.13e, 324.40104) (effective date February 14, 2016).

4. NRC's authority to issue orders regulating feeding of elk and deer is continued.

PA 265: In response to the threat of bovine tuberculosis, Public Act 66 of 1999 added Section 40111a to Part 401 of NREPA to require the Natural Resources Commission (NRC) to issue an order pertaining to deer and elk feeding. The section was originally scheduled to sunset on December 31, 2004, but the sunset date was postponed until January 1, 2010 to address bovine tuberculosis and chronic wasting disease in deer. Public Act 199 of 2009 later delayed the sunset date to January 1, 2016. At least three additional cases of chronic wasting disease have been confirmed in Michigan since 2009.

Some believe that the spread of chronic wasting disease is due in part to feeding of deer and elk. The current order prohibits a person from engaging in deer and elk feeding within certain areas. It has been suggested that the sunset be eliminated to authorize NRC to continue regulating feeding practices that may facilitate the spread of these diseases.

Public Act 265 amends Part 401 to eliminate the sunset on the requirement that the NRC issue an order concerning deer and elk feeding. (MCL 324.40111a) (effective date January 1, 2016).