State Issues

Michigan's Wetland Protection Program 

In February 2008, Governor Granholm announced in the State of the State Address her plan to return the wetland protection program to the federal government in a cost savings measure. Michigan has a proud tradition of being one of only two states to administer Section 404 of the federal Clean Water Act. In October of 2008, Senate Bill 785 passed the Michigan Legislature saving Michigan’s wetland protection program for three years. Implementation of this bill is contingent upon the Governor signing a budget bill to provide funding for the program from the unclaimed Bottle Deposit Fund.

The bill makes significant changes to Michigan’s wetland 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