Monday, March 9, 2009

MDEQ Section 404 Wetlands Program - EPA Program Review

In 2008, the U.S. Environmental Protection Agency (EPA) issued a report on its informal review of Michigan’s EPA-approved Clean Water Act (CWA) Section 404 wetlands program. Michigan is one of only two States to have received approval to administer the Section 404 program. Michigan’s Section 404 program is implemented by the Michigan Department of Environmental Quality (MDEQ).

As background, in 1997 EPA conducted a review of Michigan’s approved CWA Section 404 program and identified deficiencies that required corrective action. In its July 31, 2008 Notice, EPA again identified a number of deficiencies in Michigan’s program. MDEQ has agreed to address the deficiencies listed by EPA through a number of means, including seeking legislative amendments to Michigan’s wetlands statute, Part 303 (Wetlands Protection) of the Michigan Natural Resources and Environmental Protection Act (NREPA).

MDEQ committed to initiating the legislative corrective actions in early 2009 and to completing them within 36 months. EPA will review the status of MDEQ’s corrective actions within 36 months after the Notice to determine whether Michigan’s Clean Water Act Section 404 wetlands program approval should be revoked.

EPA took issue with a number of activities that Part 303 exempts from the requirement to obtain a wetlands permit, but that are not exempted from the CWA’s requirements, including exemptions for:

  • agricultural activities;

  • drain creation and improvement; and

  • iron and copper mining tailings basins.

To address these deficiencies, MDEQ has agreed to seek legislative amendments that would limit the agricultural exemptions, delete the agricultural drainage exemptions, delete the exemption for iron and copper mining tailings basins; and to delete the exemption for utility maintenance activities.

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