Under the Clean Water Act (CWA), the U.S. Army Corps of Engineers is authorized to issue “blanket” permits for activities that are similar in nature and supposedly do not cause unacceptable individual or cumulative impact. These blanket permits are called Nationwide Permits (NWPs), and are processed in a “streamlined” manner, which means that public review is cut out of the decision-making process.
Under Section 401 of the Clean Water Act, no federal permit to discharge pollutants into waters of the United States is valid unless certification is granted by the state where the discharge occurs. Since the NWPs are, in effect, a blanket authorization of wetland fill activities, the Corps requested all state governments to provide Section 401 water quality certification and to certify that the NWPs are consistent with the state Coastal Zone Management programs.
The Land and Water Management Division of the Michigan Department of Environmental Quality (MDEQ) recently denied water quality certification for proposed Nationwide Permit 39 under Section 401 of the CWA. NWP 39 authorizes the filling of one-half acre of wetlands and 300 linear feet of streambed for the purpose of residential, commercial, and industrial developments.
The MDEQ had concerns that NWP 39 in Michigan “could result in significant individual and cumulative impacts, including excavation or fill of Great Lakes bottomlands, damaging alteration of the riparian zone of inland lakes, the loss of high quality stream systems, such as headwater trout streams, and adverse impacts to wetlands contiguous to these waters.” The MDEQ found that new NWP 39 is very broad in scope and authorizes a large number of project types in nearly all waters of the state and that the potential adverse impacts of this permit would greatly exceed the impacts that were previously authorized under NWP 26, which it was intended to replace.
The MDEQ also suspended NWP 40 in Michigan, except for paragraph (c). Paragraph (c) authorizes the construction of building pads for farm buildings which impact no more than one-half acre of wetland that was in agricultural production prior to December 23, 1985, and requires mitigation to offset the loss of the wetlands. The MDEQ found that these building pads would not result in a violation of Michigan’s Water Quality Standards.
The remainder of NWP 40 authorizes the filling of one-half acre wetlands for the purpose of increasing agricultural production, and relocating 300 linear feet of ditches or streams. The MDEQ recommended that NWP 40 be suspended in Michigan for these activities, finding that it is not consistent with Michigan’s Coastal Zone Management Program because it could result in violation of provisions of Michigan’s Natural Resources and Environmental Protection Act.
Members of the Michigan Wetland Action Coalition and the Michigan River Network submitted comments to MDEQ’s Land and Water Management Division. Comments from river and wetland advocates focused on denying certification to NWP 39, for reasons similar to those stated by the MDEQ in their denial. Michigan’s environmental community applauds the MDEQ’s denial of NWP 39 and restrictions on many of the other new NWPs.
If you have questions about Section 401 water quality certification, or Corps NWPs, please contact the Tip of the Mitt Watershed Council at (231) 347-1181.