Dec 15, 2016
EPA review hits Michigan’s delegated authority to enforce CWA

EPA recently released a final agency action on Michigan’s “delegated authority”—those provisions that grant the state’s Department of Environmental Quality (DEQ) partial control over Clean Water Act (CWA) enforcement in the state. And at first blush, it’s not good news for the state’s farmers. Michigan Farm Bureau (MFB) staff and leadership are still interpreting the details and policy implications of the action, and will keep members informed as their analysis progresses—as well as communicate any necessary calls to action. Implications for agriculture Among the many impacted stakeholders, agriculture appears to bear the brunt of the newly disapproved provisions. As written, agriculture would lose:

  • 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 agriculture drain construction, and for soil/water conservation practices
  • ability to protect/enhance conservation easement sites as part of mitigation requirements
  • agriculture drains not determining whether a wetland is contiguous to a regulated lake or stream

Agriculture would retain its ag-drain definition and the exemptions for agriculture drain maintenance, fencing for livestock in wetlands, and construction/maintenance of forest/farm roads in wetlands. “Those are some key provisions for our farmers here in Michigan,” said Laura Campbell, manager of MFB’s agricultural ecology department. “The ability to maintain our farm drains without a state or federal permit is important for normal farm management. “That said, it’s disappointing to see the EPA apparently thinks many other practices in our state law are not consistent with the Clean Water Act.” Potential implications for blueberry growers remain unclear. Language in the EPA’s review supports state-granted general and minor permits for blueberry cultivation, but the EPA has rejected previously submitted blueberry general permits, saying they wouldn’t be considered without mitigation requirements. Implications for other stakeholders Drain Commissioners:

  • Retain the general permit for countywide drain work activities for the year
  • Retain exemption for drain maintenance and placement of spoils where they have been previously placed
  • Lose the exemption for culvert replacement and extensions of less than 24 feet

Utilities:

  • Lose the exemption for installation of utility lines less than 6 inches in wetlands

Aggregates/Mining:

  • Lose the exemption for incidental wetlands contiguous to a water body created as a result of mining excavation

Multiple stakeholders:

  • Lose the exemption for incidental wetlands created as part of a storm water facility or roadside ditches
  • Lose the ability to not consider activities in a structure as part of prudent/feasible alternatives
  • Lose the contiguous definition that says DEQ will determine whether a wetland is contiguous to a regulated stream or lake through direct physical surface or groundwater contact

Next steps “To date EPA has not set a deadline for Michigan to come into compliance with these new determinations within the Clean Water Act,” Campbell said. “This essentially will force DEQ to issue permits under state law that don’t comply with the Clean Water Act – and they’ll have to tell permittees that those permits may be overridden by EPA.” Campbell said the EPA could revoke Michigan’s delegated authority if it doesn’t see legislative action to bring DEQ’s Clean Water Act enforcement into compliance. As that authority continues to erode anyway under revisions like those announced this week, the advantages of state-level control may be dwindling. MFB legal staff is investigating what options may exist for stalling implementation of its new review until the agency comes under presumably more favorable – meaning farm-friendly – oversight in the next administration. “We need to determine if there’s a time limit for mounting a legal challenge, should we decide to contest this review or ask the attorney general to join in,” said MFB Assistant General Counsel Tyler Ernst. “Regardless of where that goes—if it goes at all – we will let our friends in the legislature know this continues to be a priority for us.” The full text of the EPA’s determination is here.

 – Jeremy Nagel, Michigan Farm Bureau
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