Legislative Analysis
ALLOW DIRECTOR OF EGLE TO ISSUE EMERGENCY ORDERS Phone: (517) 373-8080
http://www.house.mi.gov/hfa
Senate Bill 398 as enrolled Analysis available at
Sponsor: Sen. Sean McCann http://www.legislature.mi.gov
House Committee: Natural Resources, Environment,
Tourism and Outdoor Recreation
Senate Committee: Natural Resources and Agriculture
Complete to 7-29-24
(Enacted as Public Act 102 of 2024)
SUMMARY:
Senate Bill 398 would amend 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.
Part 301 of NREPA contains provisions regarding inland lakes and streams. For purposes of
Part 301, bottomland is defined as the land area of an inland lake or stream that lies below the
ordinary high-water mark and that may or may not be covered by water.
Inland lake or stream means either of the following:
• An artificial or natural lake, pond, or impoundment that is a water of the United
States as that term is used in 33 USC 1362.
• A natural or artificial lake, pond, or impoundment; a river, stream, or creek
which may or may not be serving as a drain as defined by the Drain Code; or
any other body of water that has definite banks, a bed, and visible evidence of
a continued flow or continued occurrence of water, including the St. Mary’s,
St. Clair, and Detroit Rivers, but not including the Great Lakes, Lake St. Clair,
or a lake or pond that has a surface area of less than five acres.
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.
Within 15 days after the emergency order’s issuance, EGLE would have to provide the person
who received the emergency order with an opportunity for a hearing as provided under Chapter
1
MCL 324.31506: http://legislature.mi.gov/doc.aspx?mcl-324-31506
House Fiscal Agency Page 1 of 2
 4 of the Administrative Procedures Act. At the hearing, the director would have to determine,
based on information and fact, whether the issued emergency order must be continued,
modified, suspended, or terminated as necessary for, or consistent with, the protection of public
health, safety, welfare, property, or natural resources or the public trust in natural resources.
The bill would also require that, before action is taken by EGLE to recover costs incurred by a
violation, the department must consider any evidence offered by the liable party that they are
unable to pay the costs.
Proposed MCL 324.30111d
HOUSE FLOOR ACTION:
The House adopted a floor substitute that removed language exempting certain types of
property damage from triggering the authority of the director added by the bill and added
language requiring EGLE to take into account any evidence provided by the liable party that
they are unable to pay the costs.
BRIEF DISCUSSION:
Similar to House Bill 4832 as it was reported from House committee, Senate Bill 398 was
introduced to address an issue arising from repairs made to the Morrow Dam on the Kalamazoo
River in Kalamazoo County in 2019. These repairs resulted in an estimated several hundred
thousand cubic yards of sediment being released downstream, which was not authorized as part
of the repairs. Residents and community members along the river have been pushing EGLE
for remediation of issues caused by the released sediment. However, EGLE does not have
statutory authority to use in emergency situations, and remediation has been slow to occur. The
bill would give the director of EGLE a more expedient way to order remediation to begin on
cleaning up these types of accidents.
FISCAL IMPACT:
Senate Bill 398 is unlikely to directly or immediately increase costs for EGLE. The department
may realize increased costs if it becomes necessary to repair or remove a bottomlands structure
or fill as described in the bill. Similarly, EGLE may realize increased administrative costs while
assessing the significant harm or imminent danger caused by bottomlands structures or fills
under the bill. The bill provides a means for EGLE to cover these costs through pursuit of a
civil action. The bill is unlikely to affect costs or revenues for local governments.
Legislative Analyst: Josh Roesner
Fiscal Analyst: Austin Scott
■ This analysis was prepared by nonpartisan House Fiscal Agency staff for use by House members in their
deliberations and does not constitute an official statement of legislative intent.
House Fiscal Agency SB 398 as enrolled Page 2 of 2


Statutes affected:
Substitute (S-2): 324.101, 324.90106
Substitute (S-3): 324.101, 324.90106
Substitute (H-1): 324.101, 324.90106
Senate Introduced Bill: 324.101, 324.90106
As Passed by the Senate: 324.101, 324.90106
As Passed by the House: 324.101, 324.90106
Senate Concurred Bill: 324.101, 324.90106
Public Act: 324.101, 324.90106
Senate Enrolled Bill: 324.101, 324.90106