Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Michigan Legislators Vote in Support of State-run Wetland Program

On Thursday October 1st, 2009, the Michigan legislature voted to keep the Michigan wetland program under state control with changes.  The bill must be signed by the Governor and funded through the formal appropriation process, which is expected to occur in the coming weeks.

The debate in Michigan over whether to retain permitting authority for the Section 404 program began last winter when Governor Granholm proposed to return the program to the federal government as a cost saving measure.  Michigan has been particularly hit hard by the recession.  In addition the legislature had refused to raise permitting fees to help cover the cost of the program the previous year.  Unlike other Clean Water Act programs such as the Section 319 nonpoint source program, there are no federal funds specifically dedicated to supporting implementation of state wetland programs.  The “all-purpose” implementation funding in the Clean Water Act—Section 106—is already heavily oversubscribed by other programs, primarily point source permitting.

Michigan is one of two states that have taken over implementation of the Section 404 program from the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency.  The Governor’s proposal to return the program to the federal government led to discussions in the national wetland community about whether states could and should run the Section 404 program.  Were the circumstances in Michigan unique and unprecedented or did they highlight a legitimate concern over the ability of states to commit to supporting a state-run wetland program in the long term?

In fact the events in Michigan confirm that states can make a long-term commitment to implementing Section 404.  In 2009 the wetland program was the only natural resources or environmental program that received serious public attention within the state.  Ultimately, the budget for the wetland permitting program was not cut while the overall budget for Michigan’s Department of Environmental Quality (which administers the state program) was cut by 39%.  The outcome last week would seem to strongly suggest that states can make the commitment.  And also the public believes that state administration of the Section 404 permitting program is preferable to the federal government.

In the coming months the state and the U.S. Environmental Protection Agency will need to work together to ensure that the changes passed by the legislature have not altered the program so that it no longer meets the statutory requirements for implementing Section 404 of the Clean Water Act.   Many of the changes such as adopting the federal delineation manual and pursuing a state programmatic general permit in Section 10 waters will have no impact on the state’s authority to implement the program.  Others, such as new alternatives guidance, changes to general permits, and the modifications ultimately recommended by a new “Wetlands Council” will need to be evaluated as they occur.

However states, more than the federal government, routinely make changes to their wetland programs.   For example Minnesota has amended and/or revised the Wetland Conservation Act and associated rules 17 times since the Act was passed in 1991.  Wisconsin is making adjustments to its program in response to an audit a couple of years ago.  New Hampshire and other states are integrating stormwater and wetland permitting.   These frequent modifications make it possible for states to be responsive to changes in the science and technology associated with administering these programs.  It also makes them vulnerable to efforts to weaken environmental protection.  Therefore it is important for decisions on wetland permitting and other environmental programs to be thoroughly vetted with the public at the federal, state and local level.

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