Back in July, 2013, after years of stakeholder meetings, negotiations and debates over whether preservation of Michigan's assumption of the Federal Clean Water Act wetland program was beneficial to Michigan citizens, the legislature adopted and Governor Snyder signed PA 98.
This Act amended Michigan's wetland statute (Part 303 of the Natural Resources and Environmental Protection Act) so as to bring it in line with the federal statute. An EPA audit of Michigan's wetland program in 2008 found multiple inconsistencies between it and the Clean Water Act's wetland program. Act 98 eliminated many provisions that were beneficial to farmers. In exchange, several of the amendments provided other benefits (see
"Farmers Win Some and Lose More in Wetland Amendments", Michigan Farm News, Aug. 15, 2013). U.S. EPA now wants to take most of those beneficial provisions away from farmers.
Late last year, U.S. EPA finally announced the results of its review of Act 98. While many of Act 98's provisions were approved, the U.S. EPA disapproved most of the key provisions that the Michigan Farm Bureau and other pro-farming stakeholders had fought for. (see Wetlands law in limbo: Threat or promise? Jan. 13, 2017, Michigan Farm News.)
U.S. EPA disapproved:
- the exemption allowing placement of biological residuals within a wetland (cutting of woody vegetation and in-place grinding of tree stumps);
- an exemption for wetlands incidentally created through the construction of drains for removing excess soil moisture from upland for agricultural use
- the requirement for a direct surface water or interflowing ground water connection between a wetland and a lake, pond, river, or stream for the wetland to be considered to be contiguous. [which determines DEQ jurisdiction over wetlands of less than 5 acres];
- the restriction on the DEQ's using an agricultural drain in determining whether a wetland is contiguous to an inland lake, pond, river or stream; and
- the elimination of drains, ditches or channels in and of themselves being considered wetlands.
In response to EPA's final review, the DEQ reconvened the Wetland Advisory Council, made up of representatives of nearly two dozen wetland stakeholders, to a meeting last month in Lansing. The DEQ is once again asking the stakeholders to provide a solution to the wetland problem. The Wetland Advisory Council had spent three years developing the framework of Act 98 as a response to U.S. EPA's 2008 audit. It should be noted that U.S. EPA has a representative on the Wetland Advisory Council. With the U.S. EPA's disapprovals, it's back to the drawing board.
As U.S. EPA spent well over three years reviewing PA 98, let's hope that it provides the DEQ with sufficient time to analyze options that will protect farmers. In the coming year it is likely that the new administration in Washington will greatly change if not totally eliminate U.S. EPA's Waters of the U.S. rule. If the new administration goes even further in restricting federal jurisdiction over state ponds, streams and wetlands, then it would be appropriate to reopen the debate on whether Michigan's assumption of the Clean Water Act's Wetland Program is beneficial to Michigan citizens. Matt Zimmerman is a partner and leads the Environmental, Energy and Natural Resources Practice Team at Varnum Law.