Wetland Protection: Lawmakers moving to make changes to preserve state control

A federal review of the state’s water protection measures has spurred several proposed changes in how wetlands are regulated in the state under the guidance of the Michigan Department of Environmental Quality (DEQ).

The proposed changes — which include revamping some of the rules regarding wetland protection and permitting processes under Michigan’s Natural Resources and Environmental Protection Act — are necessary for the state to retain its ability to oversee wetland permitting under the federal Clean Water Act. However, some environmentalists are concerned that the proposed changes could jeopardize some of the state’s most vulnerable land.

“The EPA (U.S. Environmental Protection Agency) conducted an audit of our (state wetland regulation) program and found that we have deficiencies,” said Jennifer McKay, a policy specialist for the Tip of the Mitt Watershed Council. “Some (proposed) changes are included that we support. Unfortunately, other provisions (we don’t support) were included.”

McKay said the greatest concerns raised by the EPA regarded the state’s wetland protection program and its permit exemptions available under that program.

“Basically, Michigan is one of two states that administer the Section 404 (wetland protection) program for the federal government,” McKay said. “There are lots of benefits that come with that … and it’s more effective and efficient for the state (to regulate wetlands). In order to maintain the program, it has to be equivalent to the federal program. Some of this (newly introduced reform legislation) is broader than the federal government requires.”

The EPA found 22 instances where the state’s wetland regulations fall short of those required under the Clean Water Act. Internal changes by the DEQ addressed 19 issues, with the remaining deficiencies requiring changes being enacted by Michigan lawmakers. Those changes relate to permit exemptions for utility work near wetlands, drains and agriculture practices regulated under the state’s environmental protection laws.

Failure to address the EPA’s concerns would require wetland permit applicants to apply to the U.S. Army Corps of Engineers and the DEQ, rather than allowing applicants to submit only one wetland permit application to the DEQ, as is currently the case.

In an effort to meet the federal requirements and maintain the state’s administration of all wetland regulation in Michigan, state Rep. Jim Stamas (R-Midland) introduced legislation on Sept. 12 to establish uniform application fees and change current exemptions from wetland permitting requirements. His proposal, House Bill (HB) 5897, also would expand the Strategic Water Fund to provide assistance to local governments to increase oversight rainwater, sewage, and septic systems to improve water quality.

An identical bill, Senate Bill (SB) 1311, was introduced in the states upper legislative chamber on Sept. 25 by state Sen. Michael Green (R-Mayville).

“We are embracing mitigation banks,” said Maggie Cox, legislative director for the DEQ. “It allows (permit applicants) to buy into wetland areas that are already created. Under current law, if you impact more than a third of an acre of wetland, you have to create two times the size impacted … you can’t preserve it, you actually have to create it, which is expensive and not very successful.”

Wetland mitigation banks would include sites where wetlands are restored, created or — in exceptional circumstances — preserved expressly for the purpose of providing compensatory mitigation in accordance the state’s wetland protection laws, in advance of authorized, unavoidable impacts to wetlands, according to a House Fiscal Analysis Agency review of the recently introduced HB 5897.

The Wetland Mitigation Bank Funding Program would provide grants and loans of up to $10 million to eligible municipalities. Up to $500,000 could be used for grants, and funding could be used as long as it’s available, according to a House Fiscal Agency analysis of the bill. The program would allow those destroying wetlands to buy into preservation of an existing wetland in the same watershed, according to the EPA. Furthermore, HB 5673, which is tied to the Stamas bill, would establish the Wetland Mitigation Bank Funding Program.

McKay said the watershed council supports mitigation banks, but questions language regarding where watershed banking projects would be conducted in relation to those wetlands destroyed and those being created.

Ecoregions — of which the state is divided into four — are regional landscape ecosystems that are classified by their ecological needs and land use patterns.

McKay said the council would like to see banking projects done in the same watershed as those lost, rather than allowing created wetland locations to fall under broader ecoregions as provided for currently. Additionally, she said the council opposes changes to the ratio at which lost wetlands are replaced under state law.

“Some wetlands are very rare and have more public benefits,” McKay said. “Coastal wetlands, for instance, if you destroy those, the ratio (for replacement) is higher because we’ve had so many lost. They (lawmakers supporting the proposal) want to be able to reduce that ratio and have flexibility with it.”

Cox said the DEQ supports changing rules to address issues with replacement ratios.

“It would provide more flexibility in mitigation ratios,” Cox said of the recent reform legislation. “Right now, it’s very prescribed … what we are proposing to do is to look at impacts of use, and then do mitigation and provide for some flexibility on how much of an impact the use will have. For instance, a farm going in will provide for wetland benefits, while a parking lot takes away use. This legislation directs us to do that.”

Portions of the Stamas bill regarding changes to drains maintained by county drain commissioners — or in Oakland County’s case the county Water Resources Commissioner’s Office — has been met with overall support by the Oakland County Water Resources Commissioner’s Office, according to Joe Colainne, an attorney for the office.

“One of the things I’ve been monitoring in respect to drains has been what kind of activities can be done within legally established drains — those that have been established under the Drain Code — and what kind of activities can take place without a permit,” Colainne said.

Historically, he said, projects involving general maintenance of drains established before 1973 weren’t required to first obtain a permit from the DEQ.

“The issue here has to do with what is required to maintain a drain if you need to pull a permit,” Colainne said. “It takes time to do that, and that raises the cost to the drainage district and essentially the taxpayers.

“We are monitoring this because we want to make sure we aren’t adding additional costs to consumers for essentially doing what we are supposed to do.”

The house legislation is tied to additional bills, including HB 5673, sponsored by state Rep. Al Pscholka (R-Stevensville); HB 5674, sponsored by state Rep. Paul Opsommer (R-DeWitt); HB 5675, sponsored by state Rep. Peter MacGregor (R-Rockford); and HB 5676, sponsored by state Rep. Eileen Kowall (R-White Lake), all which would amend the state’s Strategic Water Quality Initiatives Fund and State Revolving Fund Grant and Loan programs.

Together, the bills would expand the current state Strategic Water Quality Initiatives Loan Program and establish a new state grant program. Additionally, they would expand the pool of eligible communities to allow for more access to funding for disadvantaged communities.

Kowall’s bill would change the amount that could be transferred from the Great Lakes Water Quality Bond Fund to other funds. Specifically, $90 million — down from $710 million — could be transferred to the State Water Pollution Control Revolving Fund, which provides loans to local governments to finance the construction of sewage and storm water treatment facilities; and increase the amount transferred to the Strategic Water Quality Initiatives Fund from $290 million to $910 million.

A fiscal analysis of the bills states:

• The state Legislature has already budgeted $725,000 more in restricted funding from the Strategic Water Quality Initiative Fund and authorized five full-time employees to the DEQ to cover an anticipated increase in administrative costs under HB 5673; and

• The Strategic Water Quality Initiative Fund would receive less funding in the future, as grant programs funded from the fund don’t require repayment. Grants include individual grants of up to $2 million to municipalities for investments in sewage collection treatment systems and improvements in water quality and pollution prevention programs.

The state Wetland Advisory Council, which is tasked with examining existing wetland regulations, was set up in large part in response to the EPA’s review of Michigan’s wetland program. The advisory council also worked with legislators, the EPA and DEQ officials, the Michigan Association of Drain Commissioners and other stakeholders to offer recommendations for changes to the wetlands program. Many of the proposed changes introduced in the Stamas bill have been in the works since 2009, when the advisory council was first created.

While advisory council members have agreed that Michigan should retain authority over its wetland regulation program and not let that authority lapse in favor of federal oversight, council members in their final report of 2012 to the state Legislature stated that funding for the program will be challenging in the future.

Council members looked at several long-term funding options to continue the program in the future, with the majority of funds continuing to come from the state’s Unclaimed Bottle Deposit Fund. Additional revenue the council recommended seeking were moderate fee increases for permits and continued federal funding, as well as that from the Michigan Department of Transportation.

“The program has made significant efficiency strides in the last several years, and additional streamlining and efficiencies will be gained by some of the initial recommendations of the council,” the council stated in its final report for 2012. “Whichever funding methods are recommended by the council, these benefits will have to be strongly articulated so that all the beneficiaries (regulated community and general public) understand why the relatively modest amount of funding that the wetland program requires is so essential for resource protection and efficient economic development.”

Michigan’s wetland statute defines a wetland as “land characterized by the presence of water at a frequency and duration sufficient to support, and that under normal circumstances does support, wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh.” The definition applies to public and private lands regardless of zoning or ownership.

Wetlands are a significant factor in the health and existence of other natural resources of the state, such as inland lakes, groundwater, fisheries, wildlife, and the Great Lakes.

Wetlands provide flood and storm control through hydrologic absorption and storage capacity; wildlife habitat by providing breeding, nesting, and feeding grounds and cover for many forms of wildlife, waterfowl, migratory waterfowl, and rare, threatened, or endangered wildlife species; protection of subsurface water resources and provision of valuable watersheds and recharging groundwater supplies; pollution treatment by serving as a biological and chemical oxidation basin; erosion control by serving as a sedimentation area and filtering basin, absorbing silt and organic matter; and sources of nutrients in water food cycles and nursery grounds and sanctuaries for fish.