Michigan Poised to Surrender Wetlands Control to Feds

The state projects an annual savings of $2 million by repealing its wetlands law, considered a national model. If the law is repealed, some 30 staff positions would be eliminated.

Only two states, Michigan and New Jersey, have been approved to administer the federal Clean Water Act Section 404 Permit Program governing dredge and fill activities. These two states administer the most streamlined regulatory programs in the nation.

Under Governor Granholm's proposal, Michigan would relinquish responsibility for wetland management to the federal government. The Michigan Legislature would need to repeal Part 303, Wetlands Protection, of the Natural Resources and Environmental Protection Act. The Legislature is still considering whether or not to adopt the governor's proposal.

Federal regulations require the state to provide at least 180 days notice of a transfer of authority. A March 31, 2009 letter from Michigan Department of Environmental Quality Director Steven Chester to U.S. EPA Administrator Lisa Jackson indicates that the state wetlands program could be at an end as of October 1, the beginning of the next fiscal year.

A wetland in Michigan (Photo by Jellaluna)

The state's Wetlands Program regulates placement of fill, dredging, constructing, operating, or maintaining a use or development in a wetland, and draining surface water from a wetland.

Should this proposal be finalized, applicants would have to seek wetland permits from the United States Army Corps of Engineers office in Detroit, who would make decisions on permit applications in consultation with the U.S. Environmental Protection Agency's Region 5 office in Chicago. Other portions of the wetlands program would also be eliminated.

Some 4,000 to 6,000 permit applications are processed by the Land and Water Management Division each year that authorize dredge and fill activities under Section 404. The majority of these permits are for impacts to inland lakes and streams, with about 1,500 permits per year affecting wetlands.

Based on the current difficulty in making jurisdictional determinations at the federal level, estimating the percentage of these 1,500 wetland permits that would fall under 404 authorization is not possible, the state says.

Although permits are issued to about 90 percent of applicants, state employees work with contractors and landowners to avoid and minimize impacts to sensitive wetlands and other water resources. On an annual basis, initially proposed wetland impacts are reduced by 50 to 75 percent during the review process, the DEQ estimates.

In any case, a state may not operate a partial 404 program - it cannot provide 404 permits for some waters and not others, so Michigan would lose its permitting authority over lakes and streams if it gives up permitting control of wetlands.

Turning back contol over wetlands permitting to the federal government may jeopardize protection of isolated wetlands the DEQ says in a fact sheet on its website explaining what impacts the move might have.

Because of recent U.S. Supreme Court decisions, the jurisdictional scope of the federal wetland law is not clear and permits are decided by the Army Corps on a case-by-case basis. The DEQ says "it is likely that the USACE would not protect all of these wetlands under the Clean Water Act."

The wetlands most at risk would include isolated wetlands not physically connected to lakes or streams. This category includes 930,856 acres, or 17 percent of Michigan’s wetlands.

Also at risk would be wetlands adjacent to streams that are not relatively permanent - 36 percent of Michigan’s streams are intermittent or ephemeral. No estimate exists of the acreage of wetlands that would be impacted.

Wetlands that are adjacent to isolated lakes and ponds would also be at risk. There are 26,384 isolated lakes and ponds in Michigan - wetlands adjacent to these water bodies would be regulated only if an interstate commerce connection were defined for the lake or pond.

Under the current budget proposal, six other components of the Wetlands Program would be relinquished along with the permit program:

• Wetland mapping
• Coastal wetland protection, management and restoration
• Development of scientific methods to monitor the condition of wetlands
• Development of methods to control the highly invasive plants known as phragmites on both public and private property
• Participating in local planning projects to identify potential wetland protection and restoration projects
• Education and outreach, including presentations to civic organizations, school groups, lake associations, watershed councils, local governments and other public groups