LANSING – The key bill in a water protection package, which its backers praise as a precedent-setting management system to control large water withdrawals while still making sure water is available for farm and industrial use, won divided Michigan Senate approval Thursday.
While months of behind-the-scenes work resolved a myriad issues, some contentious items remained too objectionable for most Democrats to join in supporting the bill, which passed 24-14.
Among the differences, which are eventually expected to be worked out in a Senate-House conference committee, are a one-year delay in the effective date, the threshold of large-scale withdrawals at which a $2,000 permit is needed (the bill has 2 million gallons per day; some wanted 1 million) and the amount of allowable fish reductions due to water use (3 percent is in the bill; some want 1 percent).
The bill (SB 860 ) sets an adverse impact standard to determine whether new uses can be allowed. It joins several other bills the Senate had sent over to the House on Wednesday.
Critics also faulted the newest version of the bill for emasculating the Department of Environmental Quality’s ability to enforce the new provisions due to a ban on collecting new fees or adopting additional rules beyond what is contained in the legislation.
But Sen. Patricia Birkholz (R-Saugatuck), chair of the Senate Natural Resources and Environmental Affairs Committee and the Senate’s lead negotiator on the water package, said, “We have a very good product we can use to protect our waters going forward and still make sure the waters are available for jobs and the economy of the future.”
Before sending the bill to the House, the Senate on partisan votes rejected a series of Democratic amendments that would have lowered the allowable fish reduction levels, the allowable withdrawals from trout streams and the amount for which permits would be required for large-scale withdrawals, and giving the executive branch more authority to set the standards for withdrawals and recoup the costs of regulation.
The Michigan United Conservation Clubs, Michigan Farm Bureau, Michigan Chamber of Commerce and Michigan Manufacturers Association like the Senate-passed version.
The DEQ agrees with much of the bill, but strongly objects to the one-year waiting period to implement the new process to assess the impact of large-scale water uses.
And several environmental groups – Clean Water Action, the Michigan Environmental Council, Michigan League of Conservation Voters and Anglers of the AuSable – expressed their disappointment with passage of a “toothless” bill that fails to adequately protect state fisheries and opens rivers and streams to large-scale use. They are part of a coalition of 60 groups that said they hope the House will adopt better standards.
Birkholz said the bill would adopt for the first time anywhere a science-based tool to evaluate proposed large-scale withdrawals of water. “This will help place Michigan as the number one leader for managing large-scale water withdrawals,” she said.
The assessment tool is an automated computer program that can determine if a proposed withdrawal will have an adverse resource impact on water levels and other resources, and examines detailed impacts on fish populations. Birkholz said the development of the tool and testing to see how it works is the reason for the year delay in putting the new provisions into effect.
DEQ spokesperson Robert McCann said the agency sees no reason why the bill should not go into effect immediately. “This says we have a good, new scientific approach, but don’t use that standard for a year,” he said. “And by saying that, there could be a rush of applications that come in before the new standards take effect.”
Joining a solid Republican caucus were three Democrats: Sen. James Barcia (D-Bay City), Sen. John Gleason (D-Flint) and Sen. Mickey Switalski (D-Roseville).
Switalski said it is embarrassing that Michigan is at the tail end of other states in the Great Lakes basin to approve the compact (Wednesday’s votes put that process well on the way to final action). Still, he said, “We want the best bill possible but we can’t prevent the best from being the enemy of the good. We’re far better off with a bill than no bill.”
Despite the remaining differences, Birkholz said she is confident a compromise will be reached even if all sides are not happy with it. “There’s probably 20 areas of disagreement we have already worked out,” she said. “Just about everybody has compromised along the way.”
In addition to the permit requirements for withdrawing 2 million gallons of water per day, the bill requires permits for water bottling operations taking 200,000 gallons or more per day.
Other aspects of the bill, which adopts fundamental recommendations of the Groundwater Conservation Advisory Council, provide for development of zones to protect 80 percent of cold water systems from future withdrawals, creation of new permit requirements providing public input and protection of common law water rights, establishment of procedures for public input on proposed water usages, and protection of existing levels of water usage.
Sen. Liz Brater (D-Ann Arbor) called the issue a “historic opportunity of our generation to protect the waters of the Great Lakes, the lakes and streams and the mysterious water that flows underground. We do have a great deal of agreement but there are some crucial unresolved differences.”
Democrats and some environmental groups lamented the failure of the Senate to apply the public trust doctrine to the bill, something Ms. Birkholz said was never intended in a measure that already takes strong steps to adopt more stringent controls over water use. The doctrine declares that use is freely permitted only to the stage at which it affects another’s use.
Farm Bureau legislative counsel Matt Smego said the bill strikes a balance between keeping water in the state along with industries that rely on the resource and protecting a high quality of life for residents.
“By passing SB 860, the Michigan Senate has agreed that water use decisions should be based on scientific analysis and not emotion,” he said. “Because agriculture is dependent on access to and the availability of water for the more than 200 agricultural commodities produced in the state, Farm Bureau believes it is important to have well-founded science as a basis to evaluate new and expanded uses.”
Sen. Ray Basham (D-Taylor) said the restrictions on fees and rules “heads Michigan in a direction we don’t need to go. What we should do is put language in to make sure we adequately fund the department.”
But Birkholz said adding more rules does not do anything to enhance the state’s protection of waters, but only provides another layer of bureaucratic regulation.
Birkholz said the bill did not extend rulemaking power to the DEQ and the language on fees is limited to imposing costs that do not currently exist, features that she said some members sought to be more comfortable with the language.
The MUCC Policy Director Donna Stine said the assessment tool will protect fisheries from excessive withdrawals and the provisions of the bill will give Michigan “the absolute best groundwater protection in the world, which is something the conservation community should be applauding loudly. Some are viewing this legislation as the glass half empty but in reality, Senate Bill 860 ensures that Michigan’s rivers and streams will forever be full.”
Clean Water Action Director Cyndi Roper said the members who supported the bill may “care more about corporate lobbyists who want to profit from our waters without any meaningful restrictions that protect the public’s resource.
“The Senate bill package not only falls far short of what Michigan needs to protect its most prec
