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E-M:/ UFAT:/Michigan's Drain Code is Back!



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Enviro-Mich message from Lowell D Corbin <ufat2@juno.com>
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Please respond to the following request from Sue Julian and Banny Bishop
from the Michigan Drain Code Coalition.  --  Lowell

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March 4, 2003

Hello Fighters for the Environment,

The Drain Code is back!

Senator VanWoerkem has introduced it to the Senate ag committee he chairs
as SB 217. Itís basically the same version that passed out of the House.
Reportedly, Mike Green is working on the side for the Senator and wants
to push it through.

We (I) hope you will remain with us as part of Michigan Drain Code
Coalition.
Our first step will be to tell the Senator of all the problems with
whatís written. When we find out more information weíll let you know what
other steps can be taken.

For now,

the EPA, as part of its review of Michiganís wetland program, has
recommended that several changes be made to Parts 301 and 303 of NEREPA
with respect to drains, so that exemptions to MDEQ permitting will be
tightened up.

Even if you have already signed on to a letter circulated by MUCC, MEC,
River Network, or Tip of the Mitt (and I hope you have), please send an
additional note based on the sample letter attached. It is important to
support EPAís recommendations to limit exemptions regarding drain work. 

The just introduced SB 217 contains what seems to be improved
environmental language, but as we told you in the last go-round with this
dumb bill

MDEQís review and oversight of pollution plans is removed

Wetland destruction is still allowed, especially by developers

Drain commissioners can self-permit sedimentation issues, and are free to
destroy river bottom and riparian communities

Natural streams become "drains" by various methods with no citizen or
environmental groupís ability to challenge the plans

Permanent assessing districts may set up to pay for pollution
problemsóthe opposite of polluter pay.

And MORE, MORE, MORE!!!

Please send in your comments quickly. The deadline in March 10th. Ten or
twelve letters on this subject should have an impact at Region 5 of EPA
which has gone out of its way to solicit comments.

Sue Julian, 248-634-3513
Banny Bishop 517-437-4813
Michigan Drain Code Coalition

Send your letters to:


Jo Lynn Traub, Director, Water Division
Attn: Michigan Section 404 Program Review
U.S. Environmental Protection Agency
77 West Jackson Boulevard
Chicago, IL 60604

Re: Comments on EPAís Review of Michiganís Section 404 Program

We (I)  support EPAís conclusions from the Preliminary Findings of the
Review of Michiganís Section 404, Clean Water Act delegation. We have a
particular concern about the lessened standards with respect to drain
work that are part of Michigan law and the fact that they do not measure
up to federal standards. While huge areas of Michiganís Drain Code, P.A.
40 of 1956, need to be re-written, Michigan law would much better protect
our waters of the state/nation if it were amended as you have proposed.

Therefore we urge you to stand firm. Require the following changes per
your report:
Section 324.30305 (2)(j) should be deleted so that "plans for future
farming" cannot be used as a present excuse for permit exemption. 
Section 324.30305(2) (e) should be amended so that it is clear that only
established, ongoing farming, silvicultural or ranching operations enjoy
a permit exemption.

In plain language, the insufficiently clear Michigan agricultural
exemption has
allowed developers to claim that they do not need a wetlands permit
because they have purchased a given parcel of land and operated it as an
agricultural operation prior to converting it to a developed use. The
comparable federal statute prohibits this slight of hand. Ongoing and
established agricultural use must be established. Several egregious
claims of permit exemptions have occurred in clearly urban or suburban
wetland areas on parcels that do not qualify as ongoing farming or
silvicultural (and certainly not ranching) operations. The EPA should
require that Michigan put a stop to this deceptive practice. Normal
permit scrutiny by MDEQ should apply. Some of our most valuable wetlands
lie in suburban areas where they filter storm water and buffer the peak
discharges of the otherwise impervious landscapes
Section 324.30305(2)(h) should be amended to eliminate the words
"straightening, widening, or deepening." EPA should also recommend that
MDEQ completely eliminate reference to "improvement" so that the
exemption will read, "(h) Maintenance or operation of the following which
is necessary for the production or harvesting of agricultural products:"
Furthermore, MDEQ should promulgate rules that define the terms
maintenance and improvement in a manner consistent with the federal
definition of the term maintenance.

As proposed in your report, MDEQ should seek an Attorney Generalís
opinion discussing this limited exemption and its interrelationship with
Michiganís Drain Code. This could be a significant step in
re-establishing the stateís role as guardian of waters of the state. It
would indicate how misguided the efforts of various legislators are, who
are now poised to introduce legislation that could place all surface
waters in watershed management districts under the Drain Code instead of
under MDEQ/MDNR authority.

In Part 301, also remove the reference to improvement found at Section
324.30103(g) so that the exemption reads "(g) Maintenance of all drains
legally established and constructed prior to January 1, 1973, pursuant to
the drain code of 1956, Act No. 40 of the Public Acts of 1956, being
sections 280.1 to 280.630 of the Michigan Compiled Laws, except those
legally established drains constituting mainstream portions of certain
natural watercourses identified in rules promulgated by the department
under section 30110."

Section at 324.30103(d) should be rewritten. We support the following
unambiguous exemption language: "(d) Construction or maintenance of a
private agricultural drain on uplands, having no outlet to an inland lake
or stream." Currently, Michigan courts have to compare different statutes
to arrive at this clear reading of the law.

These changes will clarify that all other activities falling under Parts
301 and 303 will require oversight from Michiganís Department of
Environmental Quality or any successor organization. MDEQ will have the
ability to prohibit certain destructive drain work. During the process of
permit scrutiny, Michigan citizens will be able once again to comment on
the proposed action and have their comments weighed in the balance of
state decision making. This was an important and significant element of
Michigan laws at the time of 404 assumption, and it should now be
restored. 

Yours truly,



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A UFAT message from:
Lowell D. Corbin
Co-Chair: Environmental Action Committee
Michigan Audubon Society
ufat2@juno.com


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