By Paul J Sniadecki, MLSA Board Member
On July 23, 2024, the Governor signed PA 102 (SB 398) and PA 112 (SB 662) into law. The effective dates are both October 20, 2024.
PA 102 amends the Natural Resources and Environmental Protection Act (NREPA) to allow the director of the Department of Environment, Great Lakes, and Energy (EGLE) to issue a written emergency order that requires any person determined by EGLE to be in violation of Part 301 (Inland Waters) of NREPA to take emergency action necessary to prevent significant harm to the public health, safety, welfare, property, or natural resources or the public trust in natural resources. This emergency action could include, among other things, immediate repair or removal of a structure or fill owned by the person and located on bottomlands. However, the bill states that this power to issue a written emergency order would not expand EGLE’s authority under Part 315 (Dam Safety), as limited by section 31506(2)(a),1 which relates to projects permitted under certain federal authority.
Under the bill, if a person fails to comply with an emergency order or is unavailable or unable to be contacted, EGLE could take the action necessary and recover the costs incurred from that person in a civil action in a court of competent jurisdiction. The director could modify an emergency order and could also terminate an emergency order upon a determination in writing that all necessary emergency actions have been completed and that an emergency no longer exists.
PA 112 amends the definition so that normal level would mean the target level or levels of the water of an inland lake, around which actual levels may fluctuate. The bill would also allow the normal level to be based on ranges based on tolerance, operational or weather conditions, seasonality, or other similar natural or regional considerations, in addition to geodetic vertical datum. An inland lake would also be considered to be maintained at its normal level during temporary water level fluctuations resulting from any of the following:
- Weather or natural events.
- Construction activities authorized by EGLE.
- If a county or its delegated authority operates lake level infrastructure in a manner that may affect water levels but is reasonably intended to maintain a normal level.
PA 112 also increased financing options for projects related to lake level monitoring and maintenance. The provisions are complicated and we omit them to keep our articles brief.