MWAC Newsletter

October 9, 2009

In This Issue

• MICHIGAN’S WETLAND PROGRAM SPARED BY LEGISLATURE
• BUDGET FOR MICHIGAN’S NATURAL RESOURCES
• EXECUTIVE ORDER RECOMBINING MICHIGAN’S DEQ AND DNR
• HEARING SCHEDULED ON CLEAN WATER ACT
• WATER POLLUTION: OBERSTAR LOOKS TO CLEAN WATER ACT TO CLEAR UP ENFORCEMENT ISSUES

MICHIGAN'S WETLAND PROGRAM SPARED

Pending the Governor’s signature and funding actually being appropriated, Michigan’s wetland protection program will not be returned to the Federal government. The legislature passed a bill that will keep Michigan’s wetlands program running at the state level for an additional three years. Senate Bill 785 was passed by the House and the Senate on October 1st after months of discussions.

Some of the specific changes have sunsets, meaning they expire at the end of the three years in October 2012. While there are items of concern in this bill, and it is certainly not ideal for the utmost protection of our wetlands, it does retain Michigan’s wetland protection program. Keeping authority to administer Section 404 is imperative because more wetlands would be a risk under federal control at this time, due to the jurisdictional issues from SWANCC and Rapanos.

We thank Sen. Patty Birkholz, Rep. Rebekah Warren, and Rep. Dan Scripps for their leadership and efforts to save Michigan’s wetland protection program.

The following is a list of the primary provisions of the bill (in the order they appear in the bill):

• DEQ and local units of governments are required to use the U.S. Army Corps of Engineers wetland delineation manual and supplements. This will entail that the DEQ consider hydric soils in the identification of wetlands boundaries.
• Mapping of 2,500 acres of land suitable for cranberry production activities. After 2,000 acres of land have been developed, another 2,500 acres of land will be mapped
• Pilot project for local units of government, conservation districts, and others to assist in the permitting process.
• Pilot project for assisting local units of government and partnering organizations in the development of wetland mitigation banks.
• The DEQ must pursue State Programmatic General Permits (SPGP) with the U.S. Army Corps of Engineers to avoid duplication and reduce the number of permits processed by the Corps.
• Beginning in 2011, if an SPGP has not been issued for a certain activity, an applicant may choose to have the Corps make a decision on the permit application first. If the Corps grants a permit, the DEQ is required to follow the Corps decision unless the wetland meets certain criteria (is rare and imperiled; is regionally significant for fisheries, wildlife, or migratory birds; supports threatened or endangered species; provides flood or storm control or ground water recharge) or if the activity is not regulated under Section 404.
• Cranberry production activities:
  • Designation of construction of cranberry beds to be “water dependent.”
  • Cranberry operations are not subject to two presumptions in the feasible and prudent alternative analysis: that a feasible and prudent alternative that do not involve a wetland are available and that a feasible and prudent alternative that does not affect a wetland will have less adverse effects on the aquatic ecosystem. (This lowers the bars for the permit process for cranberry operations to get a permit approval)
• There is no fee for a pre-application meeting for cranberry production activities.
• Feasible and Prudent Alternative Analysis:
  • The DEQ will develop a new guidance document for feasible and prudent alternatives to be consistent with recommendations of EPA’s review of the program.
  • Before the guidance takes effect, the DEQ cannot deny an application because of the availability of a feasible and prudent alternative analysis alternative based solely on consideration of statewide alternatives, higher cost, or reduced profit unless the denial has been reviewed by the Deputy Director, and the DEQ has requested and considered information from the MEDC or other applicable economic development authority.
  • The DEQ cannot promulgate rules before October 1, 2012.
  • Feasible and prudent alternative analysis for general permits is limited to on-site alternatives.
• The DEQ is required to let a permit applicant use wetland banking for compensatory mitigation if it qualifies.
• Allows the DEQ to create minor project categories in addition to general permit categories after public notice. Minor project permits may be subject to public notice and a public hearing, but it is not required.
• Public hearing requirements were removed from the general permit process, but the department may provide notice.
• “Kick-out” provision which allows the DEQ to process a general or minor permit as an individual permit if the activity is deemed to have more than minimal adverse effect. • The DEQ will coordinate general and minor project categories consistent with Nationwide Permits under Part 301, Inland Lakes and Streams, and Part 325, Great Lakes Submerged Lands.
• The DEQ is required to propose or maintain general or minor permit project categories that mirror the U.S. Army Corps of Engineers Nationwide Permits, applicable to wetlands.
• The DEQ will develop a program to facilitate voluntary wetland restoration and enhancement projects.
• The DEQ must pursue an agreement with the EPA to expand the categories of discharges subject to the waiver. This essentially reduces the number of “red files,” applications that have to be sent to the EPA for review.
• Creation of a Wetland Advisory Council to evaluate aspects the program, including many of the changes made in this bill, and make recommendations for the future the program.

Click here to access Senate Bill 785

BUDGET FOR MICHIGAN’S NATURAL RESOURCES

Unfortunately, the retention of the wetland program is the only good news for natural resources in a budget deal that includes drastic reductions in general fund support for Michigan’s public health, water protection and natural resources management. In the case of the Department of Environmental Quality the cuts amount to a 39% reduction in general funds. More than $196 million was cut from the joint state Department of Environmental Quality and Department of Natural Resources budget.

MICHIGAN DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENT

Governor orders consolidation of DNR and DEQ into one department

Governor Jennifer Granholm has signed an executive order that will combine the Department of Natural Resources and the Department of Environmental Quality into one. The new department will be called the Department of Department of Natural Resources and Environmental Quality. The consolidation is expected to save the state an estimated $1.5 million dollars. The Governor's spokesperson, Liz Boyd says the savings could be greater. Boyd says at this time it's not known how many jobs will be cut.

Here is the letter sent to state workers:

Dear Colleague:

On behalf of Governor Jennifer M. Granholm and Lt. Governor John D. Cherry, Jr. – and at their request – we are sharing with you information on an executive order that will be announced this afternoon, creating a new Department of Natural Resources and Environment (DNRE). The order will take effect on January 17, 2010.

Experience has taught us that conserving natural resources and protecting the environment go hand-in-hand. For that reason, the state of Michigan is returning to the tradition of one department dedicated to this core mission.

The department's mission will be a familiar one to our state government family: To conserve, manage, protect and promote Michigan's natural resources, environment and related economic interests for current and future generations. This includes implementing an ecosystem-based strategy for resource management, effectively using natural resources in a sustainable manner, and providing for continuous improvements in Michigan's air, water and soils while facilitating and encouraging economic growth.

Later today, we'll make available to you additional information that will help answer the many questions that will be asked. But first and foremost, let us share some of the highlights of today's executive order.

Natural Resources Commission. The Commission of Natural Resources will be transferred, intact, to the new DNRE but will be renamed the Natural Resources Commission (NRC). Commission members will continue to serve through the end of their existing terms, and vacancies will continue to be filled by the governor with the advice and consent of the Senate. The NRC will retain existing authority to regulate the taking of game, establish periods of validity for hunting and fishing licenses, and regulate the feeding of deer and elk, without review by or appeal to, the DNRE director. The NRC will also assume functions currently performed by the Citizens Committee for Michigan State Parks and the Water Resources Conservation Advisory Council to further reduce administrative overhead. However, the governor, not the commission, will appoint the department director.

Trails Advisory Council. A seven-member Trails Advisory Council will be established under the executive order, and the functions of the existing Snowmobile Advisory Council and Michigan Trailways Advisory Council, which are being abolished under the order, will be given to this council. The Michigan Trails Advisory Council will focus on the creation, development, operation, and maintenance of snowmobile, equestrian, hiking, skiing, and off-road vehicle trails.

Environmental Science Board. The director of the DNRE will be authorized to convene a seven-member Environmental Science Review Board (ESRB) to advise the DNRE on scientific issues affecting the protection and management of Michigan's environment and natural resources. The ESRB will be comprised of individuals with expertise in biological sciences, chemistry, ecological science, geology, risk assessment, and other related disciplines. The Site Review Board process under Part 111 of the NREPA is being eliminated for greater efficiency in environmental proceedings.

Agriculture. The executive order also impacts the Michigan Department of Agriculture by giving the governor responsibility for appointing the Agriculture director, a responsibility that is currently held by the Agriculture Commission. The Office of Racing Commissioner will be transferred to the Michigan Gaming Control Board and the Racing Commissioner's position will be abolished. The executive director of the control board will assume the commissioner's duties. Several boards and commissions within the Department of Agriculture are also being abolished.

The Governor is appointing Bruce Rasher to serve as transition manager to implement the order and begin building the new department with our help. Bruce has a degree in fisheries and wildlife management from Michigan State University and worked for many years at Consumers Energy, where he was actively engaged in issues related to brownfield redevelopment, energy efficiency and environmental management. He served as mayor of the city of Marshall from 1995 to 1998.

In closing, we thank you for your great work and your commitment to protecting and managing Michigan's natural resources and environment. And we ask you to join with us as we work to create the new Michigan Department of Natural Resources and Environment.

Sincerely,

Becky Humphries,
Director Department of Natural Resources

Steven Chester,
Director Department of Environmental Quality

From WZZM 13 News

Click here to access the Executive Order

HEARING SCHEDULED ON CLEAN WATER ACT

The U.S. House Transportation & Infrastructure Committee has scheduled a hearing for Thursday, October 15, 2009 on “The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation's Waters.” The session will focus on Clean Water Act enforcement efforts and progress in achieving the law's "fishable and swimmable waters" goal.

WATER POLLUTION: OBERSTAR LOOKS TO CLEAN WATER ACT TO CLEAR UP ENFORCEMENT ISSUES

 Taryn Luntz, E&E reporter

Passing legislation to address controversial Supreme Court wetlands rulings is a crucial first step in correcting U.S. EPA's poor enforcement record for Clean Water Act violations, a key House Democrat said this week.

A New York Times investigation showed that states punished fewer than 3 percent of violators between 2004 and 2007, and that EPA frequently declined to prosecute offenders or force the states to comply.

Transportation and Infrastructure Chairman James Oberstar (D-Minn.) laid some of the blame on Supreme Court decisions in 2001 and 2006 that limited federal jurisdiction under the Clean Water Act to "navigable waters." The rulings spurred a regulatory muddle that has crippled EPA enforcement and generated confusion among farmers, developers and other interests, critics say.

Oberstar's staff is hammering out language for a bill that would amend the Clean Water Act to replace the term "navigable waters" with "waters of the United States," a move many Democrats say would restore the law's original intent to protect all U.S. waters.

"With the passage of the legislation into law, I have no doubt EPA will vigorously enforce the law," Oberstar told E&E. "They need the tools to do it. Right now they're hamstrung with many thousands more pages of permits and time wasted because of the uncertainty of the decisions."

A joint investigation by the T&I and Oversight and Government Reform committees in December revealed that EPA had dropped, delayed or softened enforcement in about 500 water cases between June 2006 and June 2007 as a result of uncertainty over the agency's jurisdiction.

"The documents indicate that the Supreme Court's decision ... and the [Bush] administration's guidance implementing that decision have resulted in a dramatic decline in the number of Clean Water Act inspections, investigations, and enforcement actions," the report said.

Earlier this year, the Obama administration urged Congress to clarify the scope of federal wetland regulations in the wake the 2006 decision, Rapanos-Carabell, and 2001's Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. "A clear statement of Congressional intent is needed to provide a foundation for steady and predictable implementation of the Clean Water Act in the years to come," the officials said in a letter to Oberstar (E&ENews PM, May 21). But the bill's critics are skeptical that the court decisions are responsible for EPA's under-enforcement, pointing instead to the agency's limited resources as a factor, especially in cases where EPA fails to enforce violations of existing federal permits.

"Enforcement is completely different than jurisdiction," said Don Parish of the American Farm Bureau Federation, which opposes the proposed bill. "If anything, expanding jurisdiction to all waters is going to really dilute the ability of the agency to prioritize anything that's important. Anytime the agency is on the outer fringes of their jurisdiction, it should take a little more time before they try to regulate private property."

But environmental groups say it is impossible to separate the two.

"If you're concerned about full and effective enforcement of the Clean Water Act, one thing you're going to have to deal with is the current geographic scope of the Clean Water Act," said Jon Devine, senior attorney for Natural Resources Defense Council. "What water it actually protects is in significant doubt because of these Supreme Court decisions."

Drumming up support

The Senate Environment and Public Works Committee passed a similar bill to the one Oberstar is discussing, S. 787, in June.

T&I staff say the committee is waiting for an opening to push its version of the bill through. "There are a lot of big-ticket items moving through the committee right now," an aide said. "For us, it's just making sure we have a clear path from introduction to committee to floor."

The measure has stirred strong opposition among Republicans, who say it would open the way for federal regulation of every ditch, puddle and pond in the country, regardless of whether they are connected to larger water bodies.

And Oberstar also must drum up support within his own party. Farm state Democrats have expressed concern that the measure would regulate farms on converted wetlands, which long have been exempt from the law.

"There does seem to be significant resistance, even among Democrats," a Republican committee aide said.

"I agree that 'navigable' should be left in there," Rep. Brad Ellsworth (D-Ind.) said at a House Small Business Committee hearing on the issue in July, after small farm and business owners warned the bill would translate into fallowed farmland, canceled construction projects and a wealth of third-party lawsuits.

"How did this happen in the Senate?" Rep. Debbie Halvorson (D-Ill.) asked at the same hearing T&I Committee staff said they have met with Obama administration officials about the bill more than a dozen times, with much of the discussion centered on crafting bill language that would protect existing exemptions for agricultural land.

The administration has pointed to the issue as a key area of concern in the bill, noting in a May letter to the Senate EPW Committee that "carefully crafted statutory exemptions for 'prior converted cropland' would be useful both to farmers and federal agencies."

S. 787 includes language added by Sen. Max Baucus (D-Mont.) to protect the agricultural exemptions.

A new administrator

Oberstar said he has faith that EPA Administrator Lisa Jackson, who has cited clean water as an agency priority several times since her January confirmation, will improve EPA's enforcement record.

"Administrator Jackson is just beginning to get her arms around the issue," Oberstar said. "She's engaging the Justice Department and is committed to restoring the original purpose of the Clean Water Act."

Jackson in July called for higher water enforcement rates in a memo to Cynthia Giles, EPA's assistant administrator for enforcement and compliance assurance.

"Data available to EPA shows that, in many parts of the country, the level of significant non-compliance with permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low," Jackson wrote. "A level playing field for enforcement and compliance is important for fair treatment of industrial facilities across the country and to prevent some regions from achieving an economic advantage over others."

Giles is expected to report to Jackson in October with a new enforcement plan.

The T&I Committee has scheduled a hearing for Oct. 15 on the issue. The session will focus on Clean Water Act enforcement efforts and progress in achieving the law's "fishable and swimmable waters" goal, a committee spokeswoman said.

The Michigan Wetland Action Coalition (MWAC), a project of Tip of The Mitt Watershed Council, is a network of wetland protection advocates across the state. MWAC is focused on promoting sound wetland protection policies at the state
and federal level through education and advocacy.

Tip of the Mitt Watershed Council
426 Bay Street
Petoskey, Michigan 49770

Phone: (231) 347-1181 x 114
Fax: (231) 347-5928
Email: jenniferm@watershedcouncil.org
Web: http://www.michiganwetlands.org