EPA makes blueberry farms collateral damage in wetland battle

Law of the Land

Matt Zimmerman | May 9, 2014

zimmermanOne of the important provisions of the 2013 amendments (2013 P.A. 98 or Act 98) to Michigan's wetland statute (Part 303 of the Natural Resources and Environmental Protection Act) required the Michigan Department of Environmental Quality to adopt a general permit category for blueberry farming within regulated wetlands. This was part of the trade-off for P.A. 98's elimination of exclusions in Part 303 for many farming activities. The DEQ, the Michigan Department of Agriculture and Rural Development (MDARD), the Michigan Farm Bureau, and many other stakeholders supported this trade-off as a way to preserve Michigan's assumption of the Federal Clean Water Act's wetland program (CWA Sec. 404). That assumption gives Michigan the authority to issue wetland permits that cover Part 303 and CWA Sec. 404 (i.e. one-stop shopping for property owners whose proposed use of their property would impact regulated wetlands). The DEQ drafted a blueberry general permit in December 2013.

CWA Sec. 404 regulations require EPA to review and approve proposed general permit categories from states that have assumed administration of CWA Sec. 404. On March 31, 2014, the United States Environmental Protection Agency (EPA) issued a letter to the DEQ summarizing its review. EPA concluded that the proposed blueberry general permit does not meet the requirements of CWA Sec. 404. EPA believes that the activities allowed by the blueberry general permit would result in significant drainage of wetlands, thereby converting them to upland, which is prohibited by Act 98 and by the CWA Sec. 404. It therefore objected to the DEQ's issuing the blueberry general permit.

The EPA's decision strikes a serious blow to the fragile compromise that resulted in Act 98. The blueberry industry was reluctant to obtain a wetland permit for blueberry farming as blueberry bushes are generally regarded as wetland species, and many experts believe that blueberry farms are functional wetlands.

A general permit has several advantages over individual site-specific wetland permits, however, the most important of which is elimination of the mitigation (or replacement) requirement. There is some logic to this - if blueberry farms remain functional wetlands, then why should blueberry farmers have to provide mitigation for them? But EPA determined that the blueberry general permit does not comply with the Federal Compensatory Mitigation Rule. This means the EPA does not accept that blueberry farms are functional wetlands.

The concerns that EPA listed in its letter strongly suggest that the blueberry general permit may not be the only item in danger. Under Act 98, the DEQ was required to propose a general permit for other farming activities not covered by the proposed blueberry general permit. That general permit was required by Dec. 31, 2013. EPA's objection to the proposed blueberry general permit will undoubtedly further delay the DEQ's completion of that general permit. EPA might also require mitigation for that general permit.

Perhaps more significantly, EPA has not formally announced whether Act 98 brought Part 303 sufficiently in line with CWA Sec 404, which would preserve Michigan's assumption of the administration of that program. EPA's rejection of the fundamental basis of the blueberry general permit is evidence that other compromise provisions in Act 98 will also be vulnerable to EPA review. That could result in EPA's rejection of Act 98 which would put DEQ, MDARD, Michigan Farm Bureau and other stakeholders back at square one.

In the meantime, DEQ and wetland stakeholders will likely try to salvage the blueberry general permit by addressing many of EPA's concerns. This will take time. Unfortunately, Michigan blueberry farmers wanting to expand their farms are collateral damage in a much larger wetland battle.

This advisory has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice.

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