EPA and Michigan Face Showdown on Wetland Protections
Pending Bill Violates Federal Law and Threatens Michigan’s Wetlands Delegation
Washington, DC — Legislation heading to the desk of Michigan Governor Rick Snyder has a score of provisions that violate the federal Clean Water Act, according to a U.S. Environmental Protection Agency analysis released today by Public Employees for Environmental Responsibility (PEER). If the Governor signs the legislation, EPA would then be forced to revoke Michigan’s federal delegation to issue wetland and stream fill permits. For the first time since 1980 Michigan would be without state protections for wetlands. In that event, Michigan would be without state protections for wetlands for the first time since 1980.
For the past 33 years, Michigan has been authorized by the federal government to administer Section 404 the federal Clean Water Program governing protections for wetlands and streams, Michigan is one of only two states (the other being New Jersey) with such a delegation of power. That delegation depends on the state maintaining a wetland protection program at least equal to federal standards, although in many respects Michigan’s program is stronger than federal minimums.
On June 13 the Michigan Legislature gave its final approval to Senate Bill 163, which would substantially weaken Michigan’s wetlands law. In a May 31, 2013 analysis, Ms. Tinka Hyde, Director of the Water Division for EPA’s Great Lakes region, detailed approximately 20 ways in which the bill conflicts with the requirements of the federal Clean Water Act, including –
- Sanctioning destruction of wetlands along agricultural drains that are streams;
- Stripping state protections from waters and wetlands protected under the Clean Water Act; and
- Authorizing local drain commissioners to fill wetlands without a permit and without compensatory mitigation for the wetlands destruction.
“This bill would be completely counterproductive, complicating development and replacing experienced state experts with remote federal overseers,” stated PEER Executive Director Jeff Ruch, pointing out that Michigan considered dropping its wetlands program back in 2009 but abandoned the idea when it became clear the move would not produce significant savings and would result in considerable confusion and uncertainty. “Governor Snyder should veto this bill and ask the Legislature to develop a plan that does not throw out the baby with the bathwater.”
While it has expressed concerns about the bill, the state Department of Environmental Quality (DEQ) has tried to pussyfoot around the problems. In a June 14th email to staff, DEQ Director Dan Wyant blandly noted “As you may have heard, the EPA has informally expressed some concerns with the bill” adding, paradoxically, that “I want you to know the passage of this bill confirms the Legislature’s commitment to maintaining Michigan’s 404 program.” Wyant went on to suggest that the bill would be enacted into law: “We will be working closely over the next several weeks and months with the U.S. EPA and the U.S. Army Corps of Engineers to determine how we will implement the program changes in the bill.”
“Lack of leadership and forthrightness by DEQ puts Michigan’s premiere wetlands program in jeopardy,” Ruch added. “Enactment of this bill will lead to the loss of valuable wetlands and years of litigation.”