LANSING, Mich. — The Michigan Farm Bureau (MFB) and Michigan Chamber of Commerce are asking U.S. EPA Administrator Scott Pruitt to conduct a second review of the state’s Clean Water Act (CWA) permitting program.

 

This situation is somewhat unique in that Michigan is only one of two states that have delegated authority to enforce key provisions of the CWA.

The request for a second review comes after a December 2016 notice from the EPA that it disapproved of some aspects of Michigan’s wetlands law, which is enforced by the state Department of Environmental Quality (DEQ). The state law in question is Public Act 98 of 2013.

“For more than 30 years Michigan has effectively managed the state’s wetlands  permitting program under delegated authority from the EPA,” said Matt Smego, MFB Government Relations Department manager. “We believe our state’s program is functionally equivalent to and as  stringent as the standards imposed bythe Clean Water Act.”

Michigan assumed CWA permitting authority for its inland waters and wetlands in 1984 in accordance with federal law; however, in 1997 the EPA received a request from an environmental group that it review DEQ’s administration of the program, which it completed in 2008.

At that point, EPA

found several problems

with DEQ’s

administration of the program. In response, in July 2013 Michigan enacted P.A. 98, which included changes to address EPA’s concerns.

That year DEQ requested that EPA approve the changes to the program reflected in the new law.

Finally, in 2016 EPA issued a notice of decision about the changes, approving some but disapproving others. But according to the MFB, Michigan officials believe DEQ’s program is at least on par with the requirements in the CWA. MFB and the state’s Chamber jointly requested relief. In a May 25 letter signed by MFB President Carl Bednarski and Michigan Chamber President Richard Studley, the two stated they would prefer that the EPA allow farmers and businesses in Michigan to continue working with DEQ staff rather than having to work with EPA personnel, whom they fear do not understand Michigan’s complicated wetlands, streams and lakes.

Given the Trump administration’s statements about ending burdensome regulations and an overreaching federal bureaucracy, similar pleas are being seen elsewhere.

For example, on May 26 U.S. House Agriculture Committee Chair K. Michael Conaway (R-Texas) and Judiciary Committee Chair Robert Goodlatte (R-Va.) sent a letter to Attorney General Jeff Sessions calling for a review of the Department of Justice’s (DOJ) decision to prosecute a California court case alleging violations under the CWA. This is directly related to both the statutory exemptions for farming and the previous Obama administration’s Waters of the U.S. (WOTUS) regulation.

The letter requests information about DOJ’s process for prosecuting violations of the CWA, citing specific concerns about the case of Duarte Nursery v. Army Corps of Engineers.

In the letter, the legislators note both committees’ concerns that the court’s opinion is not consistent with legislative intent behind the farming exemptions under CWA.

The letter also seeks to clarify whether a legislative fix is required to protect farmers, such as California farmer John Duarte, from similar prosecution in the future.

“Mr. Duarte’s case clearly highlights the need to keep the federal government out of America’s backyards, fields and ditches,” Conaway said. “Little by little, we watched the previous administration chip away at the rights of land and property owners, aiming to expand its authority through broad new rules under WOTUS, all while providing little clarity to farmers and ranchers about what qualifies for exemptions. 

 

“Our letter aims to work with the new administration to better define current interpretations of both WOTUS and farming exemptions, so we can begin to set new rules of the road that will protect our farmers and ranchers from onerous fines, penalties and regulations.”