EPA Comprehensive Review of Michigan 404 Permitting Program
On December 13, 2016, the Environmental Protection Agency (“EPA”) issued a review of Michigan Public Act 98 of 2013 (“PA 98”) to ensure that the administration of the Clean Water Act (“CWA”) by the Michigan Department of Environmental Quality (“MDEQ”) is consistent with the requirements of Section 404 of the CWA. Michigan is one of only two states in the United States that self-administers the CWA Section 404 permitting program. In February 1997, the Michigan Environmental Council requested the EPA perform a review of Michigan’s program to ensure consistency with the CWA. The EPA’s comprehensive review was completed in April 2008, and the review listed several deficiencies in the State’s administration of the Section 404 program.
In response, Michigan enacted PA 98 on July 2, 2013. PA 98 contained significant amendments to both Part 301 (Inland Lakes and Streams) and Part 303 (Wetlands Protection) of the Michigan Natural Resources and Environmental Protection Act (“NREPA”). On July 5, 2013, MDEQ submitted PA 98 to the EPA as a proposed revision to its CWA Section 404 program.
After soliciting public input, consulting with the U.S. Army Corps of Engineers, consulting with several native Michigan Tribes, receiving comments through the public input process, and deliberating with the Michigan Department of Attorney General, the EPA has issued a notice revealing the results of its review of PA 98. The EPA found the majority of the revisions within PA 98 sections to be consistent with the CWA and approvable. However, some of the sections revised under PA 98 were found to be inconsistent with the CWA and were not approved.
The full list of sections approved and disapproved can be found in the notice published in the federal register at https://www.gpo.gov/fdsys/pkg/FR-2016-12-13/pdf/2016-29888.pdf. The EPA’s explanation of each approval and disapproval can be downloaded at https://www.regulations.gov/document?D=EPA-HQ-OW-2013-0710-0121.
Summary of Potential Impacts to Drain Commissioners
The EPA disapproved, suggested revisions or further review to ensure consistency on sections that could impact activities by Drain Commissioners, including:
Part 301 (Inland Lakes and Streams)
Sec. 30103(1)(g)(vii): This section allowed for exemption from regulation (permitting requirements) under Part 301 when the activity a drain maintenance involved replacing a culvert or extending a culvert up to 24 feet. The EPA found that any extension of an existing culvert to be beyond the scope of maintenance and thus inconsistent with the CWA. It should be noted the other drain maintenance exemptions under Sec. 30103(1)(g) were approved by the EPA.
Part 303 (Wetlands)
Sec. 30305(2)(i): This section created an exemption for certain drain maintenance including the placement of spoils removed from the drain in locations along that drain where spoils have been previously placed. The EPA generally approved the language of this section, however, the EPA suggests revisions to the language to clarify that the placement of spoils along the drain into a wetland would NOT be exempt.
Sec. 30305(4)(b): This section gave exemption from regulation under Part 303 to wetlands incidentally created by construction of water treatment ponds, lagoons, or storm water facilities. The EPA found this section inconsistent with the CWA because wetlands of this type may, in some cases, meet the definition of a “water of the U.S.” and these waters that meet the definition of a water of the U.S. must be subject to CWA section 404 permitting requirements.
Sec. 30321(7): This section excluded drainage structures such as culverts, ditches, or channels from themselves being wetlands. The EPA found this exclusion to again be too broad. The EPA stated if such structures meet the federal definition for “wetland,” they need to be regulated as such.
A review of the sections of Part 301 and 303 of interest to Drain Commissioners can be found here.