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E-M:/ State Water Quality Certification of Corps Nationwide Permits

> Hello folks, 
> Wil Cwikiel of the Tip of the Mitt Watershed Council asked that I forward
> information to you regarding State Water Quality Certification of Corps
> Nationwide Permits.  Wil has asked for MEC members to review the attached
> information and write a letter to the MDEQ Land and Water Management
> Division (LWMD) requesting that they deny water quality certification on
> specific Corps Nationwide Permits that would result in the degradation of
> wetlands, streams, and other aquatic habitats.  The deadline for comments
> is June 1.    
The fact sheet and a sample letter will be available on the web tomorrow
(May 25) at
> www.mienv.org/410cert.html. Please contact Wil at (231) 3347-1181 for more
> information.
> Conan Smith
> Land Programs Director
> Michigan Environmental Council
> 119 Pere Marquette, Suite 2A
> Lansing, MI  48912
> p. (517) 487-9539
> f. (517) 487-9541
> www.mienv.org
> conanmec@voyager.net 

Action Alert
	Michigan Wetland Action Coalition
	Michigan River Network
	P.O. Box 300, Conway, MI 49722
	ph (231) 3347-1181; fx (231) 347-5928
	e-mail: water@nature.org

TO:	Michigan Wetlands Action Coalition and Michigan River Network
FR:	Wil Cwikiel and Jill Ryan, Tip of the Mitt Watershed Council
RE:	State Water Quality Certification of Corps Nationwide Permits
DT:	5/24/2000

Action Needed
Write a letter to the MDEQ Land and Water Management Division (LWMD)
requesting that they deny water quality certification on specific Corps
Nationwide Permits that would result in the degradation of wetlands,
streams, and other aquatic habitats.

MDEQ must respond to the U.S. Army Corps of Engineers (Corps) by June 7,
2000. In order for us to encourage the MDEQ to deny water quality
certification, we need to submit our comments in time for them to be
considered. Unfortunately, the opportunity to comment on this was only
announced in the May 22, 2000 MDEQ Calendar. The deadline for comment in the
Calendar is June 1, 2000. However, faxing your letter by June 2 would be

What's a Corps Nationwide Permit?
Under the Clean Water Act, the Corps is authorized to issue "blanket"
permits for activities that are similar in nature and supposedly do not
cause unacceptable individual or cumulative impact. NWPs are processed in a
"streamlined" manner, which means that public review is cut out of the
decision-making process. This recent round of Nationwide Permits was
originally intended to replace NWP 26, which presently allows discharge of
fill into isolated wetlands.

Due to Michigan's assumption of Section 404 of the Clean Water Act, the use
of NWP 26 was essentially non-existent in Michigan. The replacements for NWP
26 are not restricted to isoloated wetlands and will essentially expand the
type and number of projects that the Corps will be able to process without
public review. 

Each Corps District has the opportunity (and responsibility) to modify
("condition") or revoke NWPs based on the circumstances in each state. The
Detroit District issued their proposed regional conditions for Michigan at
the end of April and the public comment period ended May 23, 2000. Although
the proposed regional conditions reduced wetland and stream impacts to some
extent, many of the NWPs still unacceptable in Michigan.

What's Water Quality Certification?
Under Section 401 of the Clean Water Act, no federal permit to discharge
pollutants into waters of the United States is valid unless the state where
the discharge occurs grants certification, or waives its right to certify,
that the permit will not violate state water quality standards. Since the
NWPs authorize wetland fill activities, the Corps has requested the
MDEQ-LWMD to provide Section 401 water quality certification.

Right now, the Detroit District of the Corps is under extreme pressure to
have consistent regulations across the country. They want to have same
standards for wetland, shoreline, and stream protection in the "Water
Wonderland" as they do in Nebraska. Regardless of this pressure within the
Corps, they cannot authorize a NWP if the state denies water quality
certification. We need to encourage the LWMD to deny water quality
certification of the most egregious Corps nationwides...and in so doing
protect the waters of the Great Lakes State.

Why is this Important in Michigan?
Even though Michigan has their own wetland regulatory program, the NWPs will
have a huge impact on how wetlands are regulated across the state-not only
by the Corps along the Great Lakes and the inland waterways, but also by the
MDEQ. As we've seen in the past, the reduction in federal wetland protection
standards places enormous pressure on Michigan legislators and agencies to
reduce state standards. By encouraging the MDEQ to deny water quality
certification for the worst NWPs, we help maintain the integrity of a permit
review process that requires public review and individual attention by
professional staff.

For more information, check out

General Comments
The New NWPs Do Not Respect the Unique and Valuable Nature of the Great
Known as "The Water Wonderland," Michigan is located in the heart of the
Great Lakes and contains thousands of high quality inland lakes and over 30
thousand river miles. Michigan's booming tourist economy, the recreational
opportunities of residents, and all businesses and families that use water
rely on wetlands, lakes, and rivers for their survival. The Great Lakes are
national and global treasures. As clean fresh water becomes more rare, the
Great Lakes will only become more valuable. 

Although many of the new NWPs exclude tidal wetlands (recognizing the value
of coastal wetlands along the oceans), it does nothing to recognize or
respect the unique and valuable nature of the Great Lakes and numerous
inland lakes and rivers throughout Michigan, or of the important role that
wetlands play in maintaining their health. 

>From the perspective of protecting Michigan's natural attributes, the MDEQ
is completely justified in denying certification for NWPs.

The New NWPs Expand Impacts Beyond What They Were Intended to Replace 
This recent round of Nationwide Permits was originally intended to replace
NWP 26, which presently allows the fill in isolated wetlands. The regional
conditions placed on the new NWPs limit their use in areas below the
ordinary high water mark, but do noting to protect riparian wetlands on
Michigan's lakes, rivers, and the Great Lakes that are above the OHWM. By
limiting activities to isolated wetlands, NWP 26 had very little effect on
lakes and rivers. Although the amount of fill may be reduced, the new
Nationwides open up millions of acres of contiguous wetlands to development.

Although Michigan's wetland program will provide a "safety net" for these
wetlands due the state's assumption of the federal wetland program, if
certification is not denied it is likely that severe political pressure will
be put on the MDEQ to reduce protection of these incredibly important
The New NWPs Will Increase Cumulative Wetland Impacts in Michigan 
Nearly all of Michigan's waterways have suffered substantial environmental
impacts over time. In some cases, these impacts have resulted from large
projects. However, the vast majority of the lakes and rivers have suffered
impacts from the accretion of numerous "small" impacts. Akin to the "death
by a thousand cuts," these small impacts have resulted in substantial
cumulative impacts. The new NWPs provide the institutional "rubber stamp" on
projects that would otherwise be reviewed on a individual permit basis.
Through the individual permit review, professional agency staff are able to
more fully assess impacts and ensure that least damaging alternatives are
identified and exercised. The NWPs effectively short-circuit the review
process and increase the potential for approval of activities that will have
long term unacceptable environmental impacts. 

The New NWPs Promote a "Race to the Bottom"
The Corps is under pressure to reduce federal protection to the least common
dominator. The assumption here is that states with valuable water resources
like Michigan will work to protect waters to a greater extent. Due to the
unique relationship between state and federal wetland regulatory agencies in
Michigan, and the current political climate, any reduction in federal
wetland protection will quickly be translated into reductions in protection
at the state level. Michigan's wetlands are important resources that benefit
the nation as a whole-they should not fall victim to a "race to the bottom."

Comments on Select NWPs
The Corps has issued 11 new and revised NWPs, a summary of which appears on
the enclosed table. The Detroit District has proposed regional conditions on
NWP#s 3, 7, 12, 14, 27, 39, 40, 41, 42, and 43, and has revoked 44. Although
all of these are somewhat problematic, here are two that have the potential
to have the most impact. If you have time to comment on others, please do
NWP 39-Residential, Commercial, and Institutional Developments
Description: NWP 39 authorizes the filling of one-half acre of wetlands and
300 linear feet of streambed for the purpose of residential, commercial, and
industrial developments. Although there are some general conditions, the
only exemptions are for tidal wetlands. The Detroit District proposes the
following regional conditions: 1) no discharge in areas below the OHWM,
areas subject to inundation by the adjacent water body, or other areas that
provide fisheries habitat; 2) the size of the discharge is limited to 1/4
acre, and 3) associated recreation activities are limited to trails and

Problems: Remember that the NWP this is replacing was originally limited to
isolated wetlands--all riparian wetlands were exempted. When looked at from
this perspective, this NWP EXPANDS the reach of NWPs in Michigan. If the
MDEQ follows suit and issues a general permit of the same ilk, all wetlands
adjacent to lakes and streams (including the Great Lakes!) would be under
threat for destruction a quarter acre at a time without the opportunity for
the public to participate in the decisions.

>From an ecological perspective, even fills of 1/4 acre have a significant
impact on lake and stream ecosystems. Given cumulative impacts of shoreline
development, this could have huge impacts on the health of our lakes and
streams (not to mention the wetlands themselves).

Recommendation: We must encourage the MDEQ to deny 401 certification for NWP

NWP 40-Agricultural Activities
Description: NWP 40 authorizes the filling of one-half acre of wetlands for
the purpose of increasing agricultural production, relocating 300 linear
feet of ditches or streams, and constructing farm buildings. The Corps has
proposed no regional conditions on NWP 40.

Problems: Do you remember the "Agriculture Wetland Welfare Bill" that was
introduced last summer? Well this NWP would essentially do the same thing a
half-acre at a time-exempt farmers from permanently converting wetlands for
basically whatever reason they want. This NWP is the result of a very strong
Corporate Ag lobby in Washington D.C. In Michigan, thanks the assumption of
Section 404, the impacts of this NWP will be reduced in the short term
(farmers who want to build in wetlands would still need to get a state
permit). However, in the mid- to long term, you can bet your hip boots that
the corporate farmer lobby will entice the legislature to "dumb down"
Michigan's law to match this Federal Ag exemption.

Recommendation: We must encourage the MDEQ to deny 401 certification for NWP

Other NWP's
The other NWPs are not without potential problems. Without going into
detail, we recommend encouraging the denial of NWP 41 (Reshaping Existing
Drainage Ditches), and NWP 42 (which, even with the Corps conditions, would
allow 1/4 acre of fill for Recreational Facilities). If you have the time
prepare comments on other NWPs, look them up on the Corps website (noted
above) or call the Tip of the Mitt Watershed Council, the Corps, or the MDEQ
(see MDEQ Calendar Notice) for more detailed information.

Designated Critical Resource Waters
Michigan's water resources are critical the economy and quality of life of
residents and visitors. The Corps has a list of critical waters on which the
NWPs do not apply. The state can petition the Corps to expand this list. We
encourage you to recommend expanding the list of critical waters to include
all the Great Lakes and connecting waters, inland lakes over five acres,
perennial streams and rivers, and rare wetland types in Michigan (i.e.,
domed bogs, fens, alvar, interdunal wetlands, lakeplain prairie, etc.).

Send Your Letter To:
	Peg Bostwick, Section 404 Coordinator
	Michigan Department of Environmental Quality
	P.O. Box 30473
	Lansing, MI 48909-7973
	ph: (517) 335-3470