By Chris Grubb
In 1984 Michigan became the first state, and is currently one of only two states, authorized to administer the Section 404 (wetlands protection) permitting program of the Clean Water Act. To maintain authority for the Section 404 Program, a state must show that its program is at least as protective as the federal Section 404 Program. In early 1998 the U.S. Environmental Protection Agency (EPA) began an informal but comprehensive review of Michigan’s Section 404 Program because a number of relevant state and federal statutes had changed since 1984. A body of Michigan judicial and administrative opinions had developed relevant to the program; and, they had received many complaints about the administration of the program. The results of this review were presented to the Michigan Department of Environmental Quality (MDEQ) and published in the Federal Register for public review and comment in March, 2003. MDEQ has responded by proposing to take the following actions to address the concerns raised in EPA’s review:
Isolated wetlands greater than five acres are protected by Michigan’s Wetland Protection law, but in counties having less than 100,000 people MDEQ needs to conduct an inventory process to gain jurisdiction. This inventory process is underway and the department proposes to complete the inventory by 2006. Isolated wetlands less than five acres in size are only protected if the department finds the protection of the area is essential to the preservation of the natural resources of the state.
The agency will also work with EPA to ensure that permit conditions required by EPA’s administrative rules are incorporated into the permits they issue. Federally listed threatened and endangered species will also be taken into closer consideration by working with EPA and U.S. Fish and Wildlife Service to improve screening for permit applications thatmay impact these species. MDEQ has also agreed to issue public notice for any Proposal for Decision that would have more impact on natural resources than the permit application, and to develop a procedure to notify adjacent states of permit applications that would impact waters of those states.
Revised Rules for Inland Lakes & Streams (Part 301) and Wetlands (Part 303)
Under Part 301, MDEQ will seek to revise administrative rules to limit the definition of the exemption for drain “maintenance and improvement” to be consistent with the federal definition. The agency will seek to revise administrative rules to consider cumulative impacts when new minor permit categories are established, limit the term of permits to five years, authorize modification of permits and add grounds for revocation of permits, and require staff to consider impacts to threatened and endangered species during the review process. Under Part 303, the agency will seek to revise administrative rules to incorporate several of the issues above, amend the evaluation of feasible and prudent alternatives to comply with federal regulation, and clarify the exemption for road maintenance.
Legislatively, the MDEQ will be seeking several amendments to Part 303 to ensure consistency with Section 404 of the federal Clean Water Act. The agency will seek to clarify the wetland inventory process to gain jurisdiction over all wetlands that are larger than five acres and not connected to other wetlands. Also, MDEQ will be looking to alter exemptions for agricultural and forestry activities, agricultural drainage, drain maintenance, certain utilities, and iron and copper mining tailings basins.
Issuance of Opinions by Attorney General
As new administrative rules are adopted, MDEQ will seek to provide written opinion from the Michigan Attorney General addressing the applicability of the new rules to pending permit applications and contested cases. The Department of the Attorney General has also agreed to provide a final statement indicating Michigan’s legal authority to continue administering the Section 404 Program.
Revising the Section 404 Program Memorandum of Agreement
The current Memorandum of Agreement (MOA) between EPA and MDEQ is out of date, and will need to be revised. The updated MOA will reflect changes in enforcement procedures, and will clarify that any permit issued because MDEQ exceeded the 90-day limit for permit review will be a state-only (not federal) permit. MDEQ has also requested that a MOA between the agency and the Army Corps of Engineers be modified to clearly define the Corps’ jurisdiction for wetlands occurring on Native American lands.
Michigan has long been seen as a leader in wetland protection. Due to changes in both state and federal law in the 1990s, Michigan must make some positive changes to regain its mantle of wetland leader. Given the importance of wetlands, and Michigan’s place in the center of the Great Lakes, it is important that citizens work with the MDEQ to bring about these changes.