Depending on your point of view, the possibility of losing Michigan’s authority to enforce the federal Clean Water Act is either a threat or a promise.
But today, after the Environmental Protection Agency’s (EPA) post-election disapproval of key provisions of Michigan’s wetlands law (P.A. 98 of 2013), farmers and the Michigan Department of Environmental Quality (DEQ) are stuck between two administrations, wondering what will change and when, or whether they will be threatened or given a promise. Or if there’s a difference.
“Under the new administration, we don’t know where the EPA will focus its attention,” said Laura Campbell, manager of Michigan Farm Bureau’s Agriculture Ecology department. “There will be a new administrator, a change in staff, and if the political winds blow where we think they will, a new emphasis on reducing bureaucracy. But that might not make much difference to farmers. They told us when we were first developing P.A. 98 that they’d rather deal with the Michigan DEQ than the EPA. We’ll find out if that attitude continues today.”
Michigan is one of only two states that have “delegated authority” to enforce key portions of the Clean Water Act for the EPA, and it receives more than $2 million a year in state General Fund money to administer it under the Michigan Wetlands and Inland Lakes and Streams acts.
That’s one reason Gov. Jennifer Granholm viewed the delegated authority as a threat to Michigan’s then-troubled budget and threatened to hand that authority back to the feds as a cost-cutting move.
The promise of giving that authority back to the EPA, however, never panned out, which was good news to farmers who would rather deal with local DEQ authorities who know Michigan and its complicated wetlands, streams and lakes.
It was also good for environmentalists who understood, Campbell said, that Michigan regulated more water than required by the EPA, the Clean Water Act and the Natural Resources Environmental Protection Act (NREPA).
“For example,” Campbell said, “the Clean Water Act as interpreted by the EPA does not regulate isolated water bodies that are not connected to navigable waters. But Michigan’s law gave the DEQ authority to regulate any non-connected waters more than 5 acres because we think they’re important and we want to protect them. It was something farmers gave up in order to gain other benefits from the state law.”
Catch me if you can
If, however, the EPA pulls Michigan’s delegated authority, as it has threatened in the past, some farmers might see it as a promising development.
“We would never condone this attitude, but we understand that because the EPA may not have the ability, budget or staff to effectively enforce Michigan’s wetlands and water regulations, some farmers may figure that the door’s open, so they can do what they want in regulated areas and tell the EPA to catch them if it can,” Campbell said.
Doing the right things for water protection isn’t all that clear-cut anymore, though. If the EPA under existing law doesn’t regulate small water bodies, it will if its Waters of the U.S. rule (WOTUS) survives court challenges. That rule, as interpreted by Farm Bureau and many other groups, including several state attorneys general, would regulate everything right down to mud puddles. It would require permits for normal, long-established farming practices including tilling land and pounding fence posts. And that’s why most farmers would rather deal with DEQ personnel, because they seem less-inclined to use federal guidance as their marching orders.
That’s because of P.A. 98, which the DEQ has indicated will continue to be enforced, even if it doesn’t comply with the EPA’s disapproval. It’s still the state’s law.
The task, then, in front of everyone who has an interest in the situation, is to make P.A. 98 compliant with the EPA’s interpretation of the Clean Water Act and NREPA.
“This is where we need our farmer members to step up and let us know if they want to keep Michigan’s program,” Campbell said. “There are benefits to keeping it, and farmers understand that, as they did in 2013 when our law was written. However, if we change our law to comply with EPA’s review, some of those benefits will be lost.”
|“We need our farmer members to step up and let us know if they want to keep Michigan’s program,” Campbell said.|
Gains and losses
Among the positive things that came out of the EPA’s long-awaited disapproval of P.A. 98 is that farmers would retain the current definition of agricultural drains and exemptions for drain maintenance.
“The ability to maintain our farm drains (particularly man-made drains) without a state or federal permit is important for normal farm management,” Campbell said, noting that it would still be legal to sink fence posts and build and maintain forest and farm roads in wetlands after the EPA’s determination in mid-December.
However, permitting a blueberry farmers’ ability to expand acreage in wetlands ‑ a need that was key to P.A. 98 from the beginning ‑ may continue in limbo, as it was after the EPA found the law’s general permitting for such expansion unacceptable.
“The EPA rejected that idea back in 2014,” said Matt Smego, manager of Michigan Farm Bureau’s Government Relations Department. “Since then, our blueberry growers have been flying blind. Our state law says the DEQ shall issue blueberry expansion permits in a wetland, and a general permitting system was developed. But the EPA, which must approve state provisions, didn’t accept the permitting system. The only way for a blueberry grower to get a permit to expand in a wetland is to go through an individual permit system.”
That’s another reason farmers supported P.A. 98 five years ago. It required the DEQ to issue permits within a certain time frame. The
EPA, however, has no such requirement.
“Farm Bureau policy support for P.A. 98 was and remains conditional,” Smego said. “We support the changes made to the Wetlands Protection Act under PA 98 of 2013 to retain federally delegated authority of the Clean Water Act Section 404 Program.”
Exemptions lost under the recent EPA determination include:
- exemption for controlled access of livestock to streams for watering/crossing
- exemption for placement of biological residuals in wetlands
- exemptions for incidental wetlands as a result of upland agricultural drain construction, and for soil/water conservation practices
- ability to protect/enhance conservation easement sites as part of mitigation requirements
- agricultural drains not determining whether a wetland is contiguous to a regulated lake or stream
However, since the EPA didn’t throw out Michigan’s entire wetlands law as noncompliant with Part 303 of NREPA, Michigan has the opportunity to tweak P.A. 98 to make it compliant. But Farm Bureau will not support tweaks that go against policy number 90, the Wetlands Protection Act policy.
Farm Bureau support, however, is not something with which the EPA seems concerned. It does, however, need to pay attention to amendments to state law, since Michigan could be without a wetlands law if the EPA withdraws the state’s delegated authority.
“If the EPA withdraws our delegated authority, then our entire law that defines which wetlands can be regulated in Michigan would be repealed,” Campbell said. “Since Michigan regulates wetlands over 5 acres in size regardless of whether they are connected to downstream regulated waters, this could be a significant change in regulation of wetlands.
“The Clean Water Act only regulates wetlands that are ‘connected’ to navigable waters,” she said. “What ‘connected’ means is part of what’s being fought out in court over the WOTUS rule.”
The other major threat to farmers and the EPA, again, depending on your point of view, is the ever-present state rights conundrum.
“The EPA has the right to enforce areas it has authority for, but the state also has the right to determine what it will regulate outside the federal jurisdiction, Smego said. “At the core is separation of authority, and that’s where we all as stakeholders (farmers, builders, developers, etc.), have to decide what should be done. Do we still want the federal government to retain authority in Michigan if it’s going to micromanage the state’s program in the process? Or do we want to give it all back to the feds to manage?”
That, ultimately, could be both a threat and a promise. Unfortunately, either way could end up benefitting no one except lawyers.
Editor’s note: The DEQ’s Wetlands unit chief did not return calls seeking comment for this story.