EPA schedules Wetlands hearing – remain calm

14 Nov 2013

Michigan is one of only two states to have been delegated authority to administer the federal wetland regulations within their borders (Michigan was the first, earning this designation in 1984).  As Heather blogged this summer,  the Michigan Legislature enacted Public Act 98 into law, amending multiple parts of the Michigan environmental code regarding wetlands.  Some of the changes stemmed from a 2008 audit by the USEPA of the Michigan wetland program. Last month, EPA announced it was holding a hearing on December 11 in Lansing and a few people read it as a likely withdrawal or revocation of the delegation.

Will this hearing mean the end of wetland regulation in Michigan as we know it? I highly doubt it.

The notice does not use the word “withdraw” which would be required by the law to take such an action. 33 USC 1344(i). There is a lengthy process for such withdrawal.  Instead, the notice focuses on PA 98’s:

(1) changes to the definition of contiguous wetlands regulated by Michigan’s Clean Water Act (“CWA”) Section 404 program;

(2) the addition of new exemptions from permitting; and

(3) changes to the requirements for mitigating the effects of filling wetlands and other waters of the United States.

EPA stated that substantial changes to state CWA Section 404 programs do not take effect until program revisions are approved by EPA and it wants to consider these issues.

While there are a number of places where contiguity is defined – I suspect EPA is focusing on a definition which appears to track the Scalia (but not the Kennedy) definition from the Rapanos case.  I’m sure EPA finds that very problematic as it  has been arguing for a “both” approach for some time (and often winning that argument in the courts).  EPA also complained about an amendment making excavations adjoining a surface water body by definition “not contiguous.”

The permit exemptions largely related to work in agricultural and other drains. EPA also took issue with statutory language that called for new rules in one year, allowing agricultural mitigation by means of some sort of conservation easement on the impacted property, and which seems to allow mitigation by means of a payment of a fee which doesn’t meet federal standards for an in-lieu-fee mitigation program.

If EPA actually revoked Michigan’s delegation under CWA Section 404, applicants for dredge and fill/wetland permits would have to seek their permits from the U.S. Army Corps of Engineers. The Corps would also take over enforcement of Section 404 in Michigan.  Most, including me, view this as very undesireable.  Most interesting, is the “poison pill” that the Legislature included in PA 98 which provides that if EPA revokes Michigan’s 404 authority that the entirety of Part 303 authorizing Michigan regulation of wetlands would also be automatically repealed 160 days later.

This could mean:  no permits would be required for non-federal waters (although what that means is open to debate these days) in Michigan except where there are local ordinances; overloading federal regulators who currently are not staffed to regulate or permit in Michigan; more draconian approaches as the federal government is likely to be less flexible than State regulators; and no State involvement at all (other states have some preliminary process before a permit application is referred to the Corps).

However, given that this has been part of an ongoing dialogue since 2008, will this hearing mean the end of wetland regulation in Michigan as we know it? I highly doubt it.

Leave a Comment to “EPA schedules Wetlands hearing – remain calm”

  1. Kristi Kozubal 15. Nov, 2013 at 2:36 pm #

    It boggles that this issue remains so cloudy after all we’ve been through. But what boggles me even more is that the EPA continues to press for overly broad interpretations of the black letter law – and Congress continues to allow it. In today’s lean economic climate, in contrast with the boon of the ’90’s (when the Rapanos case must have consumed gobs of government resources in seeking to protect incredibly low-value “wetlands”), I find it hard to believe the EPA’s funding is sufficient to maintain the level of enforcement they dream of when the standards are so subjective. Why does the legislature not insist upon simplifying the “test” to make it understandable and predictable to the stakeholders (land owners) and obviously designed to protect valuable waters from real harm?

    Oh, I know. I make the erroneous assumption that there is a fixed formula for assigning “value” to waters and wetlands. So, where is the Think Tank that’s stepping back to the moon to look at the big picture for that purpose? Is it really that much easier to shuffle around these tiny, fragile shards of the existing broken puzzle than it is to manufacture a new puzzle altogether? Didn’t Rapanos teach us anything? Didn’t Congress get the message?

    An article I read in a grad seminar at U of M went so far as to say that if we fail to protect our freshwater resources, someday the earth will spin off its axis. Boy, wouldn’t that mess up the migratory birds?

  2. Vince Caruso 25. Nov, 2013 at 9:31 pm #

    It is clear that MI has not regulated wetland to the benefit of the state but to the benefit of the few.

    We have a ‘Mother of all 1,4-dioxane’ contamination in a wetland near our city of Ann Arbor that has contaminated our ground water and now is heading potentially toward our drinking water source. The state has dragged it’s feet on the cleanup and had bailed on the Part 201 groundwater cleanup standards as well in the last month.

    This from a governor that calls this town his home town, not a thoughtful regulation of our ‘Pure Michigan’ waters!

    EPA may call a hearing on CWA groundwater regulations in the state as well, and I hope both are removed and send a message to our state government!

    His home town, thanks Rick.

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