GINLC Newsletter: News from Lansing

The recent announcement from Lansing that the State would no longer regulate isolated wetlands and would leave wetland regulation to the US Army Corps of Engineers in order to relieve the budget caused a storm of protest from the Michigan environmental community. Since the Corps only regulates wetlands connected to navigable waters, protection of the huge number of isolated Michigan wetlands could be left in limbo. Fortunately the State appears to have reconsidered the decision and will continue to regulate isolated wetlands.

There is also positive news on the phosphate front. Legislation from Lansing is expected to ban the use of phosphates in dishwashing detergents, one of the culprits in the increasing algae growth in Lake Erie. Phosphates were banned nationally from laundry detergents back in 1993. The state legislature is also considering following the lead of several counties and municipalities in banning the use of phosphates in lawn fertilizer. Of course you do not have to wait for action in Lansing as phosphate free dishwashing detergent and lawn fertilizer is readily available now.

UPDATE
by Ingo Hasserodt

Unfortunately my recent report and article in the present newsletter that as part of reducing the budget, efforts in Lansing that would transfer regulation of Michigan isolated wetlands to the Federal Government have stalled was wrong or was at least premature.

On March 31 the budget was unanimously reported out of the House Appropriations Environmental Quality Subcommittee.

To no one's surprise the Chamber of Commerce, agricultural lobbyist and various development interest are pushing this legislation.

We can only hope that a majority of the legislature has the courage to defeat this effort despite the grim economic condition of the State.

The tip of the Mitt watershed council is providing the following list of talking points on this legislation.

Also from the New York Times:

Cash-strapped Mich. might hand wetlands permitting back to U.S.
Published: March 4, 2009 NYT

Michigan state lawmakers and Gov. Jennifer Granholm (D) are promoting legislation that would hand wetland permitting responsibilities back to the federal government amid deepening state budget problems.

The chairman of the state House Appropriations Environmental Quality Subcommittee, Doug Bennett (D), is chief sponsor of the measure, H.B. 4439 (pdf), which would slice funding for permitting as the governor proposed in her fiscal 2010 budget.

Environmentalists oppose giving authority over state Clean Water Act permitting to the Army Corps of Engineers, saying it will remove protection for 900,000 acres of wetlands because state regulations are more restrictive than those enforced by federal authorities. That total represents about 17 percent of Michigan's 5.5 million acres of wetlands.

Michigan officials say it is a last-resort move that will save $2 million.

"This is a program that has been underfunded in Michigan for a number of years now, and without any new support to increase the funding for the program, we were really left in a position where we couldn't afford to take any more cuts to the program and still be able to administer it," said Bob McCann, spokesman for the state Department of Environmental Quality, or DEQ.

"Frankly, it's not something that we've chosen to do for any reason other than we don't feel we have any other options, unless someone wants to come to the table with a proposal to really restore funding for this program back to where it needs to be."

Greg McCullough, a legislative staffer for Bennett, said Michigan and New Jersey are the only states that run their own wetland-permitting programs. Michigan has run the Section 404 program since 1984, about five years after the state passed a comprehensive wetlands protection law.

"The problem is, it's a $4-million-per-year program, and $2.1 million of the $4 million cost comes from the state's general fund," McCullough said. "There just is no longer money to run the program."

Talk about money woes has not won over environmentalists.

"Michigan needs to take a breath here and step back and examine what the consequences of this action would mean to our state," said Grenetta Thomassey, policy director for the Tip of the Mitt Watershed Council. "The reason that our inland lakes and streams are so good is because we also still have a tremendous amount of wetland complexes in place protecting them."

Environmentalists also say the move could threaten the Great Lakes. Jeff Ruch, executive director of Public Employees for Environmental Responsibility, called the bill a huge step backward, particularly after President Obama proposed a nearly $500 million task force aimed at restoring the Great Lakes in his fiscal 2010 budget plan.

Thomassey noted that Michigan's control over state permits also has buffered the state from the confusion and delays plaguing federal permitters in the wake of the Supreme Court's muddled 2006 Rapanos-Carabell decision, which congressional Democrats say shortened the reach of federal wetland regulators.

Even developers agree with that point, worrying about sluggish federal permitting.

"We have a concern, frankly, about the time it takes [the Army Corps] to get permits out," said Lee Schwartz, executive vice president of the Michigan Association of Home Builders. "I've been told by counterparts in other states that it takes 600 to 700 days in their area to have the Army Corps issue wetland permits. That would be devastating for the building economy here in Michigan that's already in a recession."

Schwartz also pointed out the convenience of dealing with state authorities.

"For the most part, there's clarity on projects as to what will and won't be required," Schwartz said. "Over the years, we've formed these relationships with the Department of Environmental Quality, and we have access to DEQ staffers to straighten out problems."

McCann agreed. "In Michigan law, there are mandatory timelines you have to adhere to issue permits and make decisions on permits," he said. "The federal government doesn't have that."

Looking to Capitol Hill

Though the Obama administration has promised to take another look at Rapanos, environmentalists and developers worry that confusion won't be resolved before the corps takes over the state permitting program.

U.S. EPA and the Army Corps have issued guidances addressing the case, but thus far, stakeholders have been largely dissatisfied with their attempts to clarify the decision.

"I have a lot of faith in the new administration and a lot of hope for the future," Thomassey said. "But in Michigan, we have a budget deadline of Oct. 1. ... As much faith and hope as I have, it doesn't seem realistic to me that is going to be solved by Oct. 1, and that's what Michigan needs."

Thomassey suggested that the issue could best be addressed on Capitol Hill through legislation sponsored by House Transportation and Infrastructure Chairman James Oberstar (D-Minn.) and Sen. Russ Feingold (D-Wis.).

Both lawmakers argue that prior to the Rapanos decision and the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers decision, the phrase "navigable waters" -- used in the Clean Water Act to define what is subject to federal regulatory oversight -- had been broadly defined as "waters of the United States, including the territorial seas." The lawmakers say they will reintroduce legislation aimed at restoring the broader definition.

Oberstar and Feingold's opponents say their bill would expand wetland protections beyond the intent of the Clean Water Act and could spur lawsuits ( E&E Daily , July 8, 2008).