A Watershed Moment for Michigan’s Section 404 Program
Industry groups, activists, and environmental regulators are at odds over a Michigan wetlands permitting law that arguably reduces the reach of regulators in the State. Michigan’s governor, Rick Snyder, who signed Public Act 98 on July 2, 2013, says the law will clarify permitting requirements and processes for Michigan citizens and businesses that interact with wetlands. He also praised the legislation for protecting Michigan’s authority over its water resources. Environmentalists contend that the law is inconsistent with federal regulations and would weaken protection for wetlands. EPA is accepting comments from the public through December 18, 2013, before deciding whether to approve the changes to the State’s wetlands program.
Michigan is one of only two states (New Jersey is the other) with authority to administer dredge-and-fill permits under Section 404 of the Clean Water Act (CWA). That authority depends on the State maintaining a wetlands program at least as protective as federal standards. In 2008, EPA audited Michigan’s permit program and found areas of conflict and inconsistency with the CWA and its implementing regulations. The Michigan Department of Environmental Quality (MDEQ) created a Wetlands Advisory Council to review the program, recommend changes, and lay the groundwork for a new dredge-and-fill permit regime.
The law revises existing state regulations in several respects. One amendment limits MDEQ’s jurisdiction to “navigable waters” and “waters of the United States.” Another clarifies the scope of agricultural and drainage activities that require a 404 permit, while also expanding exemptions for several ongoing agricultural operations. Perhaps the most significant change would raise the evidentiary requirements for showing that marginal (i.e., non-jurisdictional) waters are subject to CWA requirements. Under the current rule, any water located within 500 feet of an inland lake, stream, or pond and within 1,000 feet of a great lake is jurisdictional. Rather than looking at geographical proximity, Michigan’s new law demands proof of a hydrological connection between marginal and navigable waters.
Several industry groups support Michigan’s continued authority to issue 404 permits, arguing that the law will carve out more 404 permit exceptions and streamline regulatory processes. They also worry that the waiting time for obtaining a 404 permit will increase if EPA revokes Michigan’s authority and administers the program itself. Conversely, some environmentalists and federal regulators say that the new law imposes substantially lower standards than those enforced by the federal government, and its approval will foster other states to adopt similar standards. With Ohio, Oregon, Virginia, and Alaska all actively seeking to administer their own 404 permit programs, what happens to Michigan may have national implications.
EPA has not announced when it will issue its decision, but federal regulations require its approval before significant revisions to state 404 programs can take effect. The Agency held a public hearing in Lansing, Michigan, on December 11, 2013, to receive comments on the revised program, but, as of the date of this post, information about the public hearing was unavailable.
Posted at 12/18/2013 4:21 PM