In 1984 the State of Michigan assumed regulatory permitting oversight over Section 404 of the federal Clean Water Act (wetland protection) from the Environmental Protection Agency* (EPA). After receiving complaints about the State’s permitting program as well as a request from the Michigan Environmental Council to “either ensure reform of Michigan’s Section 404 program or withdraw it,” in 1997, the EPA began a thorough review of Michigan’s program. EPA recently released its findings and suggested corrective actions to the program administered by the Michigan Department of Environmental Quality (MDEQ). Some problem areas are identified below.
1. Isolated Wetlands. Michigan’s jurisdiction is problematic in that its wetland program does not extend jurisdiction over any isolated wetlands in counties with populations of less than 100,000 people (until a statewide inventory is completed), nor does MDEQ regulate isolated wetlands less than 5 acres. In addition, MDEQ does not regulate filling activities that occur in non-contiguous lakes or ponds with surface areas of less than 5 acres.The State intends to correct the most significant part of the jurisdictional problem by performing wetland inventories in all counties over the next five years.
2. Exemptions. The EPA found problems with several state exemptions. The farming, horticultural, silvicultural, lumbering, and drainage permit exemptions need to be stricter. In addition, Michigan must delete its exemption that allows construction of tailings basins and water storage areas associated with mining because there is no such exemption in the federal law.
3. Permitting Authority Issues. The EPA found problems with (a) Michigan’s Inland Lakes and Streams provisions for minor permits; (b) time limits are absent in Michigan’s Section 404 permits; (c) and various other problems that will require either promulgation and implementation of administrative rules or amendment of the statute to rectify the problems.
4. Threatened and Endangered Species. EPA is concerned that Michigan law does not clearly prohibit the issuance of permits that either will jeopardize the continued existence of threatened and endangered species and their critical habitats, or will result in significant degradation of waters of the United States. Several rule changes are suggested to correct this problem.
5. Contested Cases. EPA discovered that Michigan law was often not accurately interpreted and applied consistently with the Clean Water Act’s provisions. EPA will be reviewing contested case decisions made in the future to evaluate the effectiveness of the new rules on contested case decisions.
6. Enforcement. EPA is concerned that Michigan has too low a standard of proof to constitute a criminal violation of a wetland permit. There is also concern about the amount of certain criminal fines. To correct these problems, amendments to Michigan’s Part 303 will need to be enacted.
7. Administration of the Permitting Program. The EPA found that, overall, Michigan is doing a good job of administering its permit program, but suggested some changes in a few detailed areas, most notably the Public Notice System. The EPA also suggests that MDEQ set priorities and clear procedures for Enforcement Response and for their handling of “After-the-Fact” permits.
Michigan is only one of two states (the other is New Jersey) that administers its own Section 404 program.The problems identified above outline just some of the dangers inherent with state versus federal oversight.
*Pursuant to subsections 404(g) and 404(h) of the Clean Water Act, 33 USC §§ 1344(g) and (h).