[Federal Register: January 7, 2003 (Volume 68, Number 4)]
[Notices]
[Page 772-775]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja03-55]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-7436-4]
Preliminary Findings of Informal Review of State of Michigan's
Approved Clean Water Act Section 404 Permit Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice and request for comments.
-----------------------------------------------------------------------
SUMMARY: This document announces EPA's preliminary finding that, at
this time, formal program withdrawal proceedings should not be
initiated for Michigan's approved Clean Water Act section 404 permit
program.
DATES: Comments on this document must be received in writing by March
10, 2003.
ADDRESSES: Written comments on today's notice may be submitted to Jo
Lynn Traub, Director, Water Division, Attn: Michigan Section 404
Program Review, U.S. Environmental Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604. As an alternative, EPA will accept
comments electronically. Comments should be sent to the following
Internet Email Address: elston.sue@epa.gov.
FOR FURTHER INFORMATION CONTACT: Sue Elston, Watersheds and Wetlands
Branch, at the EPA address noted above or by telephone at (312) 886-
6115. The Report containing EPA's preliminary findings is available via
the Internet at the following location: http://www.epa.gov/region5/water/wshednps/pdf/mi_404_program_review.pdf.
In addition, a hard
copy of the information supporting today's notice is available for
review at EPA Region 5, 77 West
[[Page 773]]
Jackson Boulevard, 16th Floor, Chicago, Illinois; Library of Michigan,
702 Kalamazoo Street, Lansing, Michigan; Olson Library, Northern
Michigan University, 1401 Presque Isle Avenue, Marquette, Michigan;
Otsego County Library, 700 S. Otsego Avenue, Gaylord, Michigan; and at
Brandner Library, Schoolcraft College, 18600 Haggerty Road, Livonia,
Michigan. To arrange for access to the docket materials in Chicago,
call (312) 886-6115, in Lansing call (517) 373-9489, in Marquette call
(906) 227-2117, in Gaylord call (989) 732-5841, and in Livonia call
(734) 462-4440.
SUPPLEMENTARY INFORMATION: On October 16, 1984, EPA approved the
regulatory permitting program that the State of Michigan had submitted
pursuant to the requirements and guidelines contained in subsections
404(g) and 404(h) of the Clean Water Act. 33 U.S.C. 1344(g) and (h).
(See 49 FR 38947, October 2, 1984.) In that notice of approval, EPA
noted that the Administrator was required to approve a program
submitted by a state pursuant to subsection 404(g) of the CWA unless
that program does not meet the requirements of subsection 404(h) of the
CWA, and EPA then stated that it had determined that the program
submitted by the State of Michigan met those statutory requirements.
The components of the approved program are stated at 40 CFR 233.70 .
When EPA initially approved the program, Michigan did not have
authority to carry out the program in Indian lands. EPA now concludes,
as set forth more fully in the Report, that Michigan remains without
authorization to carry out the program in Indian lands, which EPA
defines to be the same as Indian Country as defined by statute (18
U.S.C. 1151).
The Michigan state agency authorized in 1984 to administer the
approved section 404 program was the Department of Natural Resources.
Later, the State of Michigan reorganized its agencies and transferred
authority to administer the approved section 404 program to the
Department of Environmental Quality (MDEQ). EPA approved this transfer
on November 14, 1997 (62 FR 61173, November 14, 1997). The State of
Michigan was the first state in the nation, and currently is one of
only two states, to be authorized to administer a CWA section 404
permit program within its borders.
Recently EPA decided to perform an informal review of Michigan's
approved section 404 program and the program's administration by MDEQ.
EPA so decided, among other reasons, because since 1984 there have been
a number of changes to the relevant federal and state statutes and
regulations, and because a body of State of Michigan judicial and
administrative opinions relevant to permitting under the section 404
program had developed. In addition, in recent years EPA has received a
number of comments and complaints about Michigan's administration of
the approved section 404 program. Among these was the February 1997
submission by the Michigan Environmental Council and the Lone Tree
Council which requested that EPA either ensure reform of Michigan's
section 404 program or withdraw approval of the section 404 program.
EPA responded that it was treating the February 1997 request as a
petition to withdraw, and committed to performing an informal review of
that petition's allegations, as provided for by 40 CFR 233.53(c)(1).
See documents published at 62 FR 14846, March 28, 1997, and 62 FR
61173, 61174, November 14, 1997. The federal regulations allow EPA to
conduct an informal review of allegations made in a petition to
withdraw a section 404 program approval, 40 CFR 233.53(c).
In deciding to informally review Michigan's section 404 program,
however, EPA decided to comprehensively review all aspects of
Michigan's administration of the section 404 program--both with respect
to permit processing and permit decision making and with respect to
enforcement of the provisions of CWA section 404 and section 404
permits issued by MDEQ--and to comprehensively review the adequacy of
Michigan's current legal authorities which establish and embody
Michigan's section 404 program. Thus, EPA did not limit itself to
reviewing the few matters of concern mentioned in the petition
submitted by the Michigan Environmental Council and the Lone Tree
Council.
The Regional Administrator of Region 5, EPA, informed the Director
of MDEQ of the commencement of the section 404 program review in a
letter of January 22, 1998.
To perform its program review, EPA requested that the State of
Michigan provide an updated program description (40 CFR 233.11); a new
Attorney General's Statement confirming that state laws and regulations
provide adequate authority to administer the section 404 program and
addressing the other subjects mentioned at 40 CFR 233.12; and a
compilation of all current, relevant Michigan laws and regulations. The
State of Michigan submitted these materials to EPA in June 1999, and
submitted new and updated information to EPA between June 1999 and the
date of this Notice.
As well as reviewing and analyzing the documents submitted by the
State of Michigan, during its program review EPA reviewed hundreds of
permitting files, enforcement files, and citizen complaint files that
MDEQ generated between 1995 and 1999, visiting all thirteen MDEQ
district offices and the central MDEQ office in Lansing, Michigan. EPA
also conducted numerous interviews of MDEQ personnel in the field and
central offices. Additionally, EPA reviewed most of MDEQ's written
decisions issued in contested permitting cases between January 1994 and
early 1999. The contested case decisions represent final agency action
by MDEQ in matters involving individual permits processed under the
approved state program. Also as part of its program review, EPA
consulted with offices of the U.S. Fish and Wildlife Service and the
U.S. Army Corps of Engineers which interact with MDEQ during its
administration of the program. Finally, during January and May of 1999
EPA held four availability sessions to receive comments from interested
persons.
EPA now has completed its review and analysis of all materials. EPA
has preliminarily concluded that the review findings do not warrant a
recommendation to the Administrator to initiate formal program
withdrawal proceedings, but do warrant corrective action on the State's
part. In arriving at this conclusion, EPA analyzed whether the
circumstances for program withdrawal which are set forth at 40 CFR
233.53(b) exist and, with respect to those areas of concern to EPA,
whether the State of Michigan has indicated its willingness to take
timely corrective actions to address EPA's concerns. In performing the
program review, EPA also reviewed the criteria for initial section 404
program approval which are set forth in subsection 404(h) of the CWA.
EPA has found both deficiencies and strengths in Michigan's legal
authorities establishing the approved section 404 program and in the
program's administration by MDEQ. These strengths, deficiencies, and
proposed corrective actions are identified in the document titled
Results of the U.S. Environmental Protection Agency Region 5 Review of
Michigan Department of Environmental Quality's Section 404 Program, and
other documents that are contained in the public docket that supports
this Notice. To address the deficiencies, EPA will be requesting that
the State of Michigan perform certain corrective actions; EPA already
has consulted with the State of Michigan about the nature of those
[[Page 774]]
corrective actions. The corrective actions that EPA has identified to
date are described in general terms elsewhere in this Notice and
supporting documents, although those corrective actions may be modified
based on future experience and the specifics of the corrective actions
must still be defined and finalized. EPA expects that certain
corrective actions may be implemented through regulatory action by
MDEQ, but that other corrective actions will require action by the
Michigan legislature. EPA and the State of Michigan also have agreed on
a tentative schedule for implementing the identified corrective
actions, although we expect that modifications to this schedule likely
will occur in the future. If adequate corrective actions are not taken
by the State of Michigan in a timely manner, EPA will reconsider
whether formal withdrawal proceedings, as outlined in subsection 404(i)
of the CWA and 40 CFR 233.53(c), should be commenced. A summary of the
most significant findings of the program review follows.
Through its review of the State of Michigan's legal authorities,
EPA has determined that the State's laws and regulations are, for the
most part, consistent with section 404 of the Clean Water Act, but has
identified deficiencies in a few specific areas, resulting in a
preliminary conclusion by EPA that the State does not have legal
authority fully consistent with section 404 of the Clean Water Act and
the State's implementation of the section 404 program is not entirely
consistent with the requirements of 40 CFR part 233.
The scope of regulatory jurisdiction granted to MDEQ by Michigan
law is one area of concern for EPA. In many Michigan counties MDEQ has
no jurisdiction over a non-contiguous wetland even if that wetland is
ecologically significant or large (unless MDEQ has individually
determined that the wetland has essential natural resource value). EPA
acknowledges that the extent of federal CWA jurisdiction over isolated
wetlands recently was limited by the United States Supreme Court
decision in Solid Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers, 121 S.Ct. 675 (2001) (SWANCC), but the precise CWA
jurisdictional limitation resulting from SWANCC remains unclear. For
that reason EPA remains concerned that Michigan's jurisdiction over
non-contiguous wetlands is narrower than is federal CWA jurisdiction
over isolated wetlands, even post-SWANCC. The State is proposing
completion of a statewide wetland inventory, which upon completion in
each county, will authorize MDEQ to assert jurisdiction over all non-
contiguous wetlands in that county which are larger than five acres.
Another area of concern is that Michigan law appears to exempt a
wider range of activities than does the CWA under subsection 404(f) of
the CWA, including exemptions for discharges occurring as part of
certain agricultural activities, discharges related to drain creation
and improvement, and discharges associated with iron and copper mining
tailings basins. The State has agreed to seek statutory amendments and
the promulgation of administrative rules to address these issues.
EPA's examination of Michigan law included review of MDEQ's
authorities and procedures for issuing permits. MDEQ issues section 404
and State permits for activities in waters of the United States under
two different state statutes: Part 301 and Part 303 of the Natural
Resources and Environmental Protection Act. EPA has several concerns
with regard to MDEQ's permitting authority. The first concern is that
MDEQ may not have clear authority to require all permit conditions
required under federal law, and may not have clear authority to revoke
and modify issued permits in all situations provided for by federal
law. The State has agreed to promulgation of administrative rules to
resolve these concerns. EPA also considered the Michigan statutory
provision which directs that a permit under Part 303 shall issue within
90 days of a triggering event, and found this provision does not pose
an impediment to MDEQ's proper implementation of the section 404
program.
Michigan law also fails to require that MDEQ incorporate the
section 404(b)(1) guidelines (or state environmental criteria which are
equivalent to the section 404(b)(1) guidelines) into its permit
decision making processes. The criteria in the section 404(b)(1)
guidelines as to which MDEQ-issued permits are not explicitly required
to meet include application of a proper feasible and prudent
alternatives analysis, application of the correct water dependency
test, a bar on issuing permits which will jeopardize federally
threatened or endangered species or their critical habitats, and a bar
on issuing permits which will result in significant degradation of
waters of the United States. The State has already promulgated
administrative rules that address many of these concerns, and has
agreed to promulgate rules to address the remaining issues.
EPA's review of contested case decisions issued over the years by
MDEQ's Office of Administrative Hearings found that final agency
decisions frequently have failed to interpret and apply Michigan law in
a manner that is consistent with the federal requirements for
administering a section 404 program; the result has been the issuance
of permits--which constitute section 404 permits--for activities which
have not been subjected to proper analyses for water dependency,
satisfaction of the section 404(b)(1) guidelines, and other federal
criteria, thereby undermining the State's ability to administer a
program which meets the terms of section 404(h) of the CWA. For these
reasons, EPA has found that certain changes must be made to some
Michigan statutory provisions and administrative rules in order to make
them more clearly consistent with federal law. MDEQ has acknowledged
EPA's concerns and has proposed what appear to be effective corrective
actions to resolve these concerns. Some of these corrective actions
already have been taken by MDEQ, while others are proposed for the
future.
With regard to MDEQ's administration of the section 404 program,
the program review found that, in general, MDEQ is doing a good job.
MDEQ is operating its regulatory program in a manner consistent with
the State Program Regulations found at 40 CFR part 233. The majority of
permit files which EPA reviewed were found to contain the necessary
documentation supporting the permit decision. The State's general
permit program was found to be consistent with the federal requirements
for general permits. MDEQ's permit application process was found to be
consistent with the requirements in the federal regulations. MDEQ is
including appropriate conditions in its permits to ensure compliance
with the section 404(b)(1) guidelines and applicable water quality
standards, and the duration of permits issued is consistent with
federal requirements.
This program review did, however, identify several problems with
MDEQ's administration of its section 404 permit program. The program
review identified a need for MDEQ, USFWS and EPA to develop a procedure
regarding how the agencies will coordinate when a potential project may
have some effect on a federally threatened or endangered species or
critical habitat.
The EPA has identified the need for MDEQ to modify its public
notice procedures to make them consistent with 40 CFR 233.32. EPA found
that MDEQ public notice procedures do not ensure that interested
members of the public always have sufficient
[[Page 775]]
opportunity to submit comments in response to public notices nor do the
state's public notice procedures include providing public notices by
mail to all interested parties, as required by the regulations. In
order to partially address this concern, the state has implemented an
internet based public notice system that makes all public notices
available on the MDEQ website. EPA and MDEQ will be discussing
additional corrective actions that need to be taken to ensure that all
interested persons receive timely public notices of projects requiring
CWA section 404 permits.
As part of our review of MDEQ's enforcement efforts, citizen
complaint files were reviewed in all of the MDEQ district offices.
Based on the annual reports prepared by MDEQ, an average of 800 citizen
complaints are investigated each year. The program review found that
district offices make a concerted effort to address complaints.
Generally, the review found complaints were routinely followed with
site inspections, which usually were made within two weeks of receipt
of the complaint.
An opportunity for public participation in the State's enforcement
process is required by federal law, and MDEQ has agreed to implement
procedures to comply with the requirements of 40 CFR 233.41(e)(2).
This review concludes that MDEQ has maintained a satisfactory
enforcement program. MDEQ has designed the enforcement program to
identify un-permitted activities and initiates enforcement responses in
a timely manner. Overall, Michigan's enforcement program achieves
appropriate injunctive relief through wetlands restoration and wetland
mitigation and obtains adequate penalties. The review of MDEQ's use of
administrative consent agreements found that the agreements effectively
resolved the violations at issue and resulted in additional
environmental restoration and conservation of wetland.
Although there is no legal requirement that EPA receive public
comment regarding the preliminary determinations of its informal review
of Michigan's section 404 program, EPA has decided to accept such
public comments for a period of sixty (60) days from the publication
date of this notice. EPA seeks public comment on its preliminary
determination that formal withdrawal proceedings not be commenced, as
well as EPA's detailed findings regarding MDEQ's administration of the
permitting and enforcement program and the adequacy of Michigan's legal
authorities. If public comments received by EPA indicate significant
public interest in the holding of a public hearing, EPA may decide to
hold such a hearing.
Dated: December 18, 2002.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. 03-285 Filed 1-6-03; 8:45 am]
BILLING CODE 6560-50-P