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

Salameander: Will the State of Michigan continue administration of the Section 404 permit program?

Salameander A bill passed by Michigan’s state legislature on June 13, 2013 – now awaiting signature by the Governor – would amend Michigan’s wetland protection law in a manner that may jeopardize the state’s continued administration of the federal §404 wetland permit program.  Although state officials have repeatedly stated Michigan is committed to continuing the state assumed §404 program, EPA Region 5 has provided a preliminary review indicating that provisions of the bill are inconsistent with §404 of the Clean Water Act.

Short history. Since 1984, the Michigan Department of Environmental Quality (MDEQ) has been approved to administer the federal §404 dredge and fill permit program.  To date, Michigan and New Jersey are the only states approved to administer §404, although a number of other states are actively considering this step.  Administration of the §404 program by a state requires a finding by the EPA that relevant state law is at least as stringent as the federal §404 requirements, and provides at least equivalent jurisdiction over waters of the U.S.

State administration of the federal permit program has provided significant benefits.

  • Rigorous protection of wetlands and other aquatic resources integration with multiple other state programs to protect water quality, and to manage fish and wildlife; integration with state floodplain and water management programs; and close coordination with EPA and other federal agencies.
  • The efficiency of the permit program in Michigan is very high, supported by numerous permit writing staff in local offices, and statutory deadlines for permitting decisions.  Most significantly, the state §404 program eliminates the need for duplicative state-federal permits in most parts of the state.  These factors have led to strong support by business and development interests.

However, after more than 25 years of state program administration and concurrent evolution of both state and federal law, some inconsistencies between the state and federal program did develop. In recent years MDEQ and EPA have worked with a broad group of stakeholders to resolve these issues.  Late this spring amendments to state law to address these issues were in a bill introduced into both houses of the state legislature. The purpose was to bring state law into compliance with federal law.   Unfortunately, while the recently passed legislation did correct most of the existing problems, additional amendments were added that created new and potentially more serious differences between the state and federal programs.

Problems raised by the amendments. EPA has previously requested that state law be amended to clarify exemptions to permit requirements to ensure consistency with §404.  While the stakeholder group and the MDEQ agreed with these clarifications, the legislature has inserted additional exemptions – primarily associated with certain types of agricultural production – that are not consistent with §404 regulations.   Moreover, changes were made to the definition of wetlands that would reduce the scope of the state’s jurisdiction.  Jurisdiction over headwater streams newly defined as agricultural drains would also be limited.   EPA listed these inconsistences in a memo to the MDEQ dated May 31, 2013.

Under the Clean Water Act, EPA can withdraw Michigan’s approval to administer the federal §404 program if it finds that the state no longer has the needed authority – e.g. if the legislature has changed state law in a way that makes it inconsistent with federal requirements.  It may also consider removal of state approval in response to a petition from an interested third party.  The process of withdrawing the program is lengthy, including written notice to the state and time for a response, a public comment period and public hearing, and an opportunity for the state to make legislative or administrative changes in response to EPA’s final decision.

The amendments also include a provision that would result in automatic repeal of Michigan’s wetland law in its entirety 160 days after withdrawal of the §404 program from Michigan.  Thus, if Michigan loses federal authority, it also loses authority to regulate or protect wetlands under state law.   This provision would make a bad situation worse for two reasons:

  • Repeal of the state law would eliminate any potential for the state to coordinate permit review with the Corps through an MOA or similar vehicle, or to expedite permitting of some permit categories under a state programmatic general permit.  Numerous other states make use of such mechanisms to improve state-federal coordination short of full program assumption.

  • This provision could limit the timeframe needed to transfer the permitting program back to the Corps, which is not currently staffed to undertake the added workload.  As a result, there could be a significant delay in new or pending permit applications.

There is some indication that repeal of existing law is intended to give the legislature an opportunity to “start from scratch” in defining a new state wetland protection law, but there is no indication  of how long it would take to accomplish this, or what provisions might be included in a new law.

What happens next? Assuming that the amendment is signed by the Governor as expected, the next steps will be defined by EPA.  Federal regulations indicate that a change in a state §404 program may not take effect prior to EPA approval.  Because the amendment will be given immediate effect once signed, a quick response has been requested by MDEQ staff to limit uncertainty for permit applicants.  Before a final decision is made by EPA, other responses could include:

  • Petitions from third parties to EPA to withdraw the program or other legal challenges by interested parties.

  • Immediate increased programmatic oversight by EPA.

  • Limits on state issuance of general permits.  The amendment requires development of general permits to authorize specific actions.  However, under §404 the state cannot issue a general permit category without approval by EPA.

EPA and DEQ have already initiated meetings to resolve concerns.  The best outcome at this point would be quick resolution of EPA’s concerns. However, there are many other possible outcomes.  ASWM will continue to post information on this issue as it becomes available.

For background information regarding Michigan’s Section 404 program, click here.

To view the history of this amendment, final language, and related information, see the Michigan legislature website (click here).  The amendment is referred to as SB0163 (Senate Bill 163).

To view comments by EPA regarding the bill provided to the MDEQ prior to passage, click here.

To review EPA’s regulations regarding state administration of the Section 404 program, click here.

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