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What I did on my summer vacation – Michigan’s water heritage

18 Sep 2015

eagleThis summer, Michigan’s Office of the Great Lakes (OGL) released its draft Water Strategy for the State of Michigan – and has been holding review sessions throughout the Summer to discuss it.  The Strategy discusses a number of ideas and sets goals including: protecting and restoring aquatic ecosystems, ensuring clean and safe waters, supporting water-based recreation, promoting water-based economies and investing in water infrastructure.

While there are many worthwhile goals and ideas, today, I’m going to focus on the goal of supporting water-based recreation.  Michigan is a water paradise with more boats than just about any other state, the longest freshwater coastline in the Country, nice beaches (see here) and you’re never more than 6 miles from a Great Lake, an inland lake or a river or stream.

As the summer drew to a close,my family spent a weekend in the quad cities area of Michigan and we spent a morning at the Shiawassee National Wildlife Refuge.  The Refuge contains more than 9,800 acres of marsh, bottomland hardwood forest, and grasslands.  It’s known locally as the Shiawassee Flats and includes a number of rivers which flow into the Shiawassee River which meets the Tittabawassee River to form the Saginaw River.

We spent our morning with Captain Wil Hufton of Johnny Panther Quests.  He runs an “eco-tour” business and took us up and down the Refuge and it was a lot of fun and very interesting. We saw hawks, egrets, herons and many other birds. The highlights were definitely seeing bald eagles in the wild as well as deer running along the river bank. Wil told us about the history of the area from the logging days through Michigan’s industrial era all the way to today. He educated us about changes in the river system and the challenges the system faces and has overcome.

Jon Allan, the  Director of the OGL, has spoken a lot about getting back in touch with our aquatic roots.  Now, I can see what he’s talking about.  I know my family enjoyed our eco-tour t and I would highly recommend taking a Johnny Panther eco-tour if you have plans to be in the Saginaw area some early morning or late evening.

 

What will be the top stories of 2015?

23 Jan 2015

edit_calendar_ssk_47433454Happy new year!  I know it’s almost February but as this is my first blog post of the year, I thought (particularly after hearing the State of the Union and the State of the State speeches)  I’d predict the big stories of 2015 in no particular order:

  • Wetland Rules – the EPA and the Army Corps of Engineers finally proposed rules in 2014  to address the fallout of the Rapanos case.  The proposal was met with a firestorm of disapproval, particularly from the farming world.  Will they ever finalize them?
  • Brownfield TIF Legislation – after all that work last year, will the Legislature take up streamlining this program and expanding it to allow Michigan to be even more competitive in redeveloping brownfields?
  • EPA Greenhouse Gas Rules vs. Congress – in September, 2013, EPA issued a proposal for carbon pollution from new power plants; in June  2014, EPA issued a proposal to cut carbon pollution from existing power plants – the GOP and coal and oil interests in Congress have fought this for some time.  Will the rules be adopted and enforced?  Will there be enough time for electricity generators to get alternative plans in place before being forced to shutter their oldest, least efficient and most polluting plants?
  • Keystone Pipeline – President Obama and Congress have been locked in a politically charged dispute over the Keystone XL pipeline for almost 3 years now – he seemed to indicate in the State of the Union that he’d veto legislation – will he?
  • Energy Policy – Governor Snyder has pushed for an energy policy, legislation is expected this year and the Governor recently mentioned an intention to develop a new energy agency that would make Michigan more competitive for business.  What that will entail in light of the likely changes due to federal regulations will be interesting to see – will Michigan upgrade or discard its renewable portfolio standard? Can Michigan reduce electrical cost while improving both reliability and environmental performance?
  • Water Policy – the Governor’s long-awaited great lakes policy is expected this year.
  • Pipelines – in addition to the Keystone pipeline, there has been a lot of interest in pipelines in, under and around the Great Lakes – could there be federal and state changes there?
  • Detroit’s Water Authority – it is supposed to morph into a regional authority – as I said previously, the easy part was getting to the agreement last year – will the hard work succeed or will it fail, causing major shockwaves for roughly half of the State’s population?

Earth Day at 44…. still crying?

22 Apr 2014

Earth Day brings me right back here

Earth Day brings me right back here

Happy Earth Day 44.  We have come a long way from the challenges and problems that led to the first Earth Day –  a 1969 oil spill in Santa Barbara, California; the dead zone in Lake Eriesmog in Los Angeles and burning rivers in the Midwest.

The first Earth Day led to the creation of the US Environmental Protection Agency and the passage of environmental laws like the Clean AirClean Water, and Endangered Species Acts.  As the EPA and its state counterparts have continued to regulate, there has been a backlash of business and media outcry which certainly impacts the public’s views.

The challenges we face today are more complex and likely more daunting than those of 44 years ago.  We still have oil spills, but they are from rail cars, pipelines, larger ships and deeper wells.  Lake Erie and many other bodies of water are still challenged by more diffuse and “below the radar” sources of contamination.  While reducing the impacts of asbestos, lead and NOx from our daily lives, and healing the ozone hole, we now face questions regarding greenhouse gasses, smog impacts from and in China unlike anything LA ever faced, and the challenges and benefits posed by fracking.

Once the “low hanging fruit” of easy cleanups were “picked,” what we were left with was less shocking or engaging than dead fish and burning rivers.  Consequently, there’s much more debate about the best way to address them or whether they need to be addressed at all.  The issues are just as important – maybe more so, but it’s unlikely that our polarized nation would agree on what changes would be best, if any.

New river protection regulations on the way?

14 Feb 2014

After the non-stop coverage of the spill into the Elk River in West Virginia, we are seeing reports of a spill of 82,000 tons of coal ash into a North Carolina river. The subject of coal ash has lain dormant for a while but this Duke Energy spill is like opening an old wound.  As our regular readers know, EPA has proposed new rules for coal ash storage in the wake of a  Tennessee spill in 2008.  There was another spill in Wisconsin in 2011 and the rules languished. Given this week’s coal slurry spill in West Virginia, rivers in the southeast might be feeling like endangered species.

This fall, a citizens suit was filed in West Virginia federal court (unrelated to the Elk River case) and at the end of January, the EPA agreed to issue coal ash rules by December 19th of this year. Whether the rules treat coal ash as a hazardous waste, a non-hazardous waste or some combination of the two, remains to be seen but it appears that some regulation of this reportedly second largest waste stream in the country will be implemented.  As I have blogged before, Michigan already has more river-protective regulations than many other states and it is about time that these other states are brought up to a higher standard to prevent these major spills.

We have started to realize just how important our rivers are and whether it’s bad luck or bad stewardship, we appear to be on a path to get the regulations needed to protect them.

Studies shows mixed Great Lakes wetlands data

10 Feb 2014

bogA recently reported study by the National Fish and Wildlife Service of coastal wetlands from 2004-2009, showed an increase in wetland
area of an estimated 13,610 acres, while the Atlantic, Gulf of Mexico, and Pacific coastal regions experienced net wetland losses of 111,960 acres, 257,150 acres and 5,220 acres, respectively.  In fact, the report noted that re-establishment projects had helped with this increase. One such project is the Erie Marsh project, which is part of the  Detroit River International Wildlife Refuge, established in 2001 as North America’s first International Wildlife Refuge.  The refuge includes islands, coastal wetlands, inland marshes, shoals, and riverfront lands along 48 miles of the Detroit River and western Lake Erie.  This video describes the early positive impacts of the Erie Marsh project

A companion FWS report paints a less rosy picture.  That report studied overall wetland gains and losses and concluded that there was a slight decline across the entire continental US including:

  •  a decline in saltwater wetlands by an estimated 84,100 acres, which reflected an accelerating  rate of loss of intertidal emergent wetland with some gains in beach/shore wetlands
  • a slowing decline in freshwater wetlands;
  • and large losses in forested wetlands with an estimated 392,600 acres of forested wetland area lost to upland land use types or deepwater between 2004 and 2009.

A map showing regions with the highest rate of freshwater wetland loss to upland between 2004 and 2009 included the southeastern US and the western Great Lakes and the Dakotas.  In short, while Great Lakes coastal wetlands are growing,  overall regional wetlands might actually be declining in acreage, if not quality.  What the EPA will make of that, given its current review of Michigan’s program is anyone’s guess.

What will be the top green stories of 2014?

8 Jan 2014

greatlakesAs this new year kicks off, we thought we’d look ahead at what we think may be the big stories of 2014 at MichiganGreenLaw.com, in no particular order:

Wetlands – Will EPA and the Army Corps of Engineers finalize guidance regarding the scope of waters regulated under the Clean Water Act? Or will there be new rules or even new legislation?  There are members of Congress on  both sides of this issue and it is unclear which way this issue will go, although the federal trend is to try and govern as many bodies of water no matter what. This fall, EPA published a draft connectivity analysis which many view as a prelude to new regulations attempting to vest the federal government with broad jurisdictional over virtually every drop of water in the country. It will be interesting if the federal government tries to delete the “significant” portion of the Rapanos “significant nexus” test.

• Hydraulic Fracturing –  this continues to be a lightning rod for controversy.  At the end of 2013, the Associated Press reported on both alleged and confirmed environmental problems in 4 states including Ohio and Pennsylvania.  Michigan looks to beef up its oversight of, and its communications regarding, fracking proposals and operations.  The University of Michigan continues to study the technical issues.  The focus on this issue seems to be shifting toward the volumes of water used in fracturing and monitoring withdrawals used for oil and gas production. It appears that the 2012 U.S. Department of the Interior draft rules for fracking on federal and Indian lands remain draft – will they ever be finalized?

• MDEQ Brownfield Process Streamlining.  MDEQ has promised to convene a short-term task force to work on harmonizing, improving and streamlining the various funding mechanisms currently used to incentivize brownfield redevelopment. This can only be a plus.

• MDEQ Cleanup Rules – as required by the Legislature, MDEQ proposed adopting its previously informal standards as formal cleanup rules late in 2013.  The MDEQ will continue to work on improving and in some cases broadening its cleanup rules and criteria – we expect more work on the assumptions of exposure underpinning the standards, more work on vapor intrusion standards and more work on standards and processes applicable to groundwater venting into surface waters.  MDEQ also continues to discuss more rules and standards defining what constitutes “due care” which is an issue for property owners who are not liable pursuant to a BEA and for other reasons.

• Keystone Pipeline.  As we predicted, President Obama and Congress continue to be locked in a politically charged dispute over the Keystone XL pipeline, a proposed 1,700-mile oil pipeline from Canada to Texas.  The President deferred it and lately the pundits have argued that pipelines are safer than transporting shale oil by truck and train.

• Energy Policy In Michigan – at the end of the year, and after a year of “listening” sessions and collecting information, Governor Snyder indicated that he intends to seek legislation improving Michigan’s energy policies, focusing on lowering costs, improving reliability and minimizing environmental impacts.  This will be interesting.

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.