[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28972]
[[Page Unknown]]
[Federal Register: November 25, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5111-7]
Approval of Revisions to the State of Michigan's Federally
Approved Wetland Program Resulting From the Reorganization of the
Michigan Department of Natural Resources
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Notice of approval.
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SUMMARY: Notice is hereby given that the United States Environmental
Protection Agency (U.S. EPA) approves the revisions to the State of
Michigan's federally approved wetland program resulting from the
reorganization of the Michigan Department of Natural Resources (MDNR)
by Executive Order 1991-31.
EFFECTIVE DATE: November 25, 1994.
FOR FURTHER INFORMATION: Douglas Ehorn, Chief, Wetlands and Watersheds
Section, U.S. EPA, Region 5, 77 W. Jackson (WQW-16J), Chicago,
Illinois, 60604. (312) 353-2308
SUPPLEMENTARY INFORMATION:
I. Background
On October 2, 1984, EPA published notice of its approval of the
State of Michigan's Section 404 wetlands program pursuant to Section
404(g)(1) of the Clean Water Act, 33 U.S.C. 1344(g)(1). 49 FR 38948.
Michigan's program became effective October 16, 1984. 49 FR 38948
(October 2, 1984). 40 CFR 233.60.
40 CFR 233.16 requires that EPA review and either approve or
disapprove of any revisions to a state's Section 404 wetlands program
based upon whether the revisions comply with the requirements of the
Clean Water Act and its implementing regulations. 40 CFR 233.16(d)(3)
provides that, if EPA determines that a program revision is
substantial, EPA must provide public notice and an opportunity for
public hearing on the revision.
Michigan's original program description submitted to EPA on October
26, 1983 specified that the Michigan Department of Natural Resources
(MDNR) was the agency responsible for implementing the permitting and
enforcement components of Michigan's Section 404 wetlands program. The
Michigan Water Resources Commission (MWRC) was specified as the agency
responsible for insuring that wetland permitting was coordinated with
state, interstate and federal-state water related planning and review
processes.
On November 8, 1991, the Governor of Michigan issued Executive
Order 1991-31. Executive Order 1991-31, which became effective on
September 2, 1993, provides that:
All the statutory authority, power, duties, functions and
responsibilities of the Commission of Natural Resources and the
Department of Natural Resources * * * and of the director of the
Department of Natural Resources and of the agencies, boards and
commissions contained therein * * * are hereby transferred to the
director of a new Michigan Department of Natural Resources, by a
Type II transfer, as defined by Section 3 of Act No. 380 of the
Public Acts of 1965, being Section 16.103 of the Michigan Compiled
Laws.
Executive Order 1991-31 also provided that the responsibilties and
authorities of the MWRC were transferred, via a Type III transfer, from
the Water Resources Commission to the director of a new MDNR.
Pursuant to EPA's request, Michigan submitted numerous documents to
EPA that were necessary for EPA to determine whether the revisions to
Michigan's Section 404 wetlands program resulting from Executive Order
1991-93 would comply with the requirements of the Clean Water Act and
its implementing regulations and whether such revisions were
substantial. According to Michigan, there had been no substantive
changes in Michigan's Section 404 wetlands program as a result of
Executive Order 1991-31. Instead, according to Michigan, Executive
Order 1991-31 merely resulted in some reorganization within MDNR.
Michigan certified in an Attorney General's Statement that all of the
state authorities included in Michigan's original October 26, 1983
program description remained in full force and effect after issuance of
Executive Order 1991-31.
Based upon its review of the documents submitted by Michigan, EPA
made a preliminary determination that there had been no substantial
revisions in Michigan's Section 404 wetlands program as a result of
Executive Order 1991-31. However, because there appeared to be a
significant amount of public interest in this matter, EPA chose to seek
public comment on its determination. Consequently, on April 21, 1994,
EPA published a notice in the Federal Register of EPA's preliminary
determination and stated that ``EPA is seeking public comment
concerning whether any substantial revisions to the State wetlands
program were effected by the MDNR reorganization, and comment on Agency
approval or disapproval of any revisions to Michigan's wetlands program
as outlined in Executive Order 1991-93 and MDNR's December 15, 1993
submittal.'' The notice further emphasized that ``EPA is not seeking at
this time, public comment on unrelated issues regarding Michigan's
wetland program.'' Finally, the notice stated that copies of Michigan's
description of the wetlands program, related correspondence and EPA's
findings of no substantial revisions would be available for public
inspection at two locations in Michigan.
II. Comments
In response to the April 21, 1994 notice, EPA received comments
from nine commenters who disagreed with EPA's preliminary determination
that Executive Order 1991-31 did not substantially revise Michigan's
wetlands program. In addition, the United States Department of
Interior, Fish and Wildlife Service, stated that it agreed with EPA's
preliminary determination that Executive Order 1991-31 did not
substantially revise Michigan's wetland program and offered two
additional comments. EPA's detailed responses to all comments received
are set forth in a document entitled ``Response to Comments Raised
Regarding Revisions to Michigan Wetland Program.'' This document can be
obtained from Mr. Douglas Ehorn at the address and phone number listed
above. A summary of the comments and EPA's responses to the comments is
provided below.
There were several comments that Executive Order 1991-31 has
revised the public participation requirements in Michigan's Section 404
wetlands program. Under 40 CFR 233.16(d)(3), changes in public
participation requirements must be considered to be substantial
changes. These commenters, therefore, believe that Executive Order
1991-31 has effected a substantial revision in Michigan's wetland
program.
The public participation requirements for state Section 404 wetland
programs are set forth at 40 CFR 233.32-34. These provisions contain
specific requirements regarding the need for, timing of, information
contained in, method of providing, and persons to be provided public
notice of permit applications, draft general permits and consideration
of major permit modifications (40 CFR 233.32); the need for and method
of conducting public hearings (40 CFR 233.33); and the manner in which
public comments must be considered and included in the official record
in making permit determinations (40 CFR 233.34). Michigan, in its
October 26, 1983 program description, demonstrated that the MDNR had
authority to comply with all of the above requirements.
As described above, MDNR is still the authority responsible for
processing and making determinations regarding wetland permit
applications in Michigan. None of the public participation requirements
that were applicable to MDNR in processing and making determinations
regarding wetland permit applications have changed as a result of
Executive Order 1991-31. Therefore, EPA did not receive any comments
that suggested that the public participation requirements applicable to
MDNR in the processing and issuance of wetland permits had been changed
or were in any way not in compliance with the requirements of the Clean
Water Act and the public participation requirements of 40 CFR 233.32-
34. Instead, the comments on public participation focussed on three
other issues.
First, one commenter stated that public participation in the
development of administrative rules implementing Michigan's wetlands
program has changed in that the Director of the MDNR now establishes
the administrative rules by which the program is administered rather
than the Michigan Natural Resources Commission (``MNRC''). This
commenter stated that the Director of MDNR, unlike MNRC, is not subject
to Michigan's Open Meetings Act and therefore the Director can make
final decisions on administrative rules pertaining to the wetlands
program in closed meetings and the substance of those meetings need not
be recorded. The commenter suggested that this represents a significant
change from the way in which MNRC developed administrative rules for
Michigan's wetlands program.
EPA does not agree that this apparent change in the manner in which
administrative rules are developed represents a change in Michigan's
Section 404 wetlands program. A state's federally authorized Section
404 wetlands program consists of the statutes and rules which govern
the state's program. EPA has no role to play in overseeing or dictating
how those statutes and rules are developed. Instead, EPA's role is to
determine whether the statutes and rules which comprise the program
comply with minimum federal requirements for authorized programs,
regardless of how the state has developed those statutes and rules. If
the state desires to change those statutes or rules, EPA has no role in
determining the manner in which those statutes or rules are changed, so
long as the state submits the proposed changes to EPA for review.
Consequently, the applicability or inapplicability of the State's Open
Meetings Act to changes in administrative rules does not represent a
change in Michigan's Section 404 wetlands program.
The second reason suggested by commenters that Executive Order
1991-31 effected a change in public participation requirements pertains
to changes involving the manner in which Michigan ``assure[s] that any
state * * * whose waters may be affected by the issuance of a permit
may submit written recommendation to the permitting state'' and
``assures continued coordination with Federal and Federal-State water
related planning and review processes'' as required by Sections
404(h)(1)(E) & (H) of the Clean Water Act, 33 U.S.C.Sec. 1344(h)(1)(E)
& (H). In Michigan's original program description submitted to EPA on
October 26, 1983, Michigan stated that it could assure such
coordination because ``[t]he broad powers that were statutorily
allotted to Michigan's Water Resource Commission [``MWRC''] are more
than sufficient'' to provide such assurances.
Commenters noted that Executive Order 1991-31 abolished MWRC and
transferred its responsibilities and authorities to the Director of
MDNR. These commenters claimed that MWRC was subject to the Open
Meetings Act while the Director of MDNR is not. Consequently, these
commenters suggest, there has been a change in the opportunities for
public participation in the ``Federal and Federal-State water related
planning and review processes.'' These commenters go on to suggest
that, because Michigan's Section 404 wetlands program must assure
coordination with these planning processes, a change in the public's
opportunity to participate in those planning and review processes
constitutes a change in the wetlands program's public participation
provisions. EPA does not agree that changes in Federal and Federal-
State planning and review processes in the State of Michigan are
changes in Michigan's Section 404 wetlands program.
Section 404(h)(1)(E), 33 U.S.C. 1344(h)(1)(E), requires that state
wetland programs ``assure that any State * * * whose waters may be
affected by the issuance of a permit may submit written recommendations
to the permitting State.'' Similarly, Section 404(h)(1)(H), 33 U.S.C.
1344(h)(1)(H), requires that state wetland programs ``assure continued
coordination with Federal and Federal-State water-related planning and
review processes.'' Nothing in either section or anywhere else in
Section 404 or the regulations implementing Section 404 requires that a
state, as part of its Section 404 wetlands program, assure that the
public is allowed to participate in any Federal, Federal-State or
interstate coordinating processes. EPA's review of Michigan's Section
404 wetlands program, therefore, is limited to a review of whether
Michigan's Section 404 wetlands program contains provisions which
assure the interstate, intrastate and Federal-State coordination
required by Sections 404(h)(1)(E) and (H). As described below, EPA has
determined that Michigan's Section 404 wetland program does contain
such assurances.
Section 323.1 et seq. of Michigan's Compiled Laws (Mich. Comp.
Laws) established MWRC. Mich. Comp. Laws Sec. 323.2a(1) provides that
``[t]he water resources commission is designated the state agency to
cooperate and negotiate with other governments, governmental units and
agencies thereof, in matters concerning the water resources of the
state, including but not limited to flood control, beach erosion
control and water quality control planning, development and
management.'' Michigan, in its October 26, 1983 program description,
relied upon Mich. Comp. Laws Sec. 323.2a(1) as the basis for assuring
EPA that the interstate, intrastate and Federal-State coordination
required by Sections 404(h)(1)(E) and (H) would occur. Section III.B.1
of Executive Order 1991-31 transferred all of these duties and
authorities from the MWRC to the Director of MDNR and the Michigan
Attorney General has certified that these authorities remain in full
force and effect. Consequently, Michigan's Section 404 wetlands program
assures that the interstate, intrastate and Federal-State coordination
required by Sections 404(h)(1)(E) and (H) shall take place through the
MDNR.
A number of commenters noted that the Michigan Attorney General's
Statement failed to specifically mention that MDNR, rather than MWRC,
would be responsible for the interstate, intrastate and Federal-State
coordination described above. According to these commenters, this
claimed failure rendered Michigan's modified program description
``deficient on its face and, as a matter of law, [provides] an
inadequate basis for public comment and provides EPA with an inadequate
basis on which to determine whether or not the Michigan wetlands
permitting program currently complies with applicable federal
requirements.'' EPA disagrees.
The basis for these commenters concern is their apparent belief
that EPA must limit its review in this matter to the documents included
with Michigan's December 15, 1993 letter to EPA, which included the
Attorney General's Statement and Michigan's original October 26, 1983
program description. However, 40 CFR 233.16(d)(1) provides that a State
may submit ``a modified program description or other documents which
[EPA] determines to be necessary to evaluate whether the program
complies with the requirements of the Act and this part'' (emphasis
added). As described above, Michigan submitted a number of other
documents to EPA in addition the December 15, 1993 letter, including a
September 20, 1993 letter from Michigan which contained Executive Order
1991-31. As noted above, EPA's determination that Michigan's Section
404 wetlands program assures interstate, intrastate and Federal-State
coordination is based upon the Attorney General's Statement, Michigan's
October 26, 1983 program description, and Executive Order 1991-31. All
of these documents were included in the administrative record which was
made available for public review after EPA made its preliminary
determination on April 21, 1994.
The third set of comments regarding how Executive Order 1991-31
effected a change in public participation requirements pertained to the
roles formerly played by the MWRC and the Michigan Natural Resources
Commission (``MNRC'') as public ``sounding boards'' and sources of
information pertaining to wetlands issues. According to these
commentators, Executive Order 1991-31, in abolishing the MWRC and
changing the role of the MNRC effected a change in public participation
because the public now has less of an opportunity to understand issues
or being decided or express concerns regarding the state's wetland
program. EPA does not agree that this represents a change in the public
particpation provisions of Michigan's Section 404 wetlands program.
As described above, Michigan's original October 26, 1983 program
description indicated that federal public participation requirements
would be met based upon state statutory and regulatory requirements
applicable to MDNR. There is nothing in Michigan's original program
description which indicated that either MWRC or MNRC would play any
role as part of Michigan's Section 404 wetlands program in assuring
compliance with federal public particpation requirements. Consequently,
although these commissions may in fact have provided the public
additional opportunities to receive information about and to comment on
wetland issues, those opportunities were above and beyond the
opportunities which were reviewed and approved by EPA as part of
Michigan's Section 404 wetlands program. Consequently, the abolishment
of MWRC and change in role for MNRC did not revise the public
participation provisions of Michigan's Section 404 wetlands program.
There were a number of comments regarding perceived changes in
Michigan's Section 404 wetlands program that have occurred since it was
first approved by EPA in 1984, but which were not related in any way to
Executive Order 1991-31. For example, commenters suggested that
Michigan agencies and courts have interpreted the ``feasible and
prudent alternatives'' test under Michigan law in a manner inconsistent
with the Clean Water Act Section 404(b)(1) guidelines.
As was stated in the April 21, 1994, Federal Register notice, EPA's
review in this matter is limited to a review of the revisions in
Michigan's Section 404 wetlands program that have resulted from
Executive Order 1991-31. A number of commenters stated that EPA cannot
so limit its review. These commenters pointed to 40 CFR 233.1(b) which
provides that ``[p]artial State programs are not approvable under
section 404.'' EPA does not agree that 40 CFR 233.1(b) is applicable
here.
The prohibition on approval of ``[p]artial State programs'' at 40
CFR 233.1(b) comes into play at the time when a state is initially
seeking federal approval of its Section 404 wetlands program. At that
time, there is no Section 404 wetlands program in the state. If the
state fails to address all of the Section 404 requirements, 40 CFR
233.1(b) would prohibit EPA from approving the program. The present
matter involves review of possible revisions to Michigan's already
approved Section 404 wetlands program.
40 CFR 233.16 contains the requirements pertaining to program
revisions. 40 CFR 233.16(a) requires that a State keep EPA informed of
changes in the State's statutory or regulatory authority or other
modifications which are significant to administration of the State's
authorized program. Under 40 CFR 233.16(e), EPA may request and a State
must provide documents or information whenever EPA believes that
circumstances have changed with respect to the State's program.
Finally, whenever EPA or a State finds that the State program is in
need of revision, EPA must review and approve or disapprove of such
revision. 40 CFR 233.16(d).
In the present matter, EPA requested that Michigan submit
information to EPA pursuant to 40 CFR 233.16 on whether any revisions
occurred in Michigan's federally approved Section 404 wetlands program
as a result of Executive Order 1991-31. EPA has not requested
information pertaining to any other issues regarding Michigan's Section
404 wetlands program. EPA is therefore limiting its review to the
effects of Executive Order 1991-31.
EPA appreciates the comments received on these matters, has
forwarded them to Michigan and will consider them in the context of
EPA's ongoing oversight of Michigan's wetlands program. If, in the
course of its ongoing oversight, EPA determines that a program revision
has occurred in any of the ways described in the comments, EPA will
take the appropriate steps as set forth at 40 CFR 233.16 to review and
approve or disapprove of the revisions.
There was one other comment, in addition to the comment pertaining
to the feasible and prudent alternatives test, which suggested that
Michigan's wetland program failed to comply with the Clean Water Act
and its implementing regulations. This comment was that Executive Order
1991-31 has ``substantially changed the criteria and burden of proof by
which the permitting agency routinely reviews or decides upon permits,
thereby allowing agency action to take place without assurance of
minimum-floor compliance with the Section 404(b) guidelines as required
by 40 CFR 233, part 50.'' According to the commenter, ``[t]he Michigan
Department of Natural Resources's (``MDNR'') flow-chart for decision
making * * * allows an agency to apply overly vague and broad
evidentiary tests to routine agency decisions when considering issuance
of wetland permits.''
EPA does not agree that Executive Order 1991-31 has caused the
changes suggested by the commenter. There is no indication in any of
the materials submitted by Michigan regarding any changes in criteria
or burden of proof for decisionmaking. EPA is not aware of any MDNR
``flow-chart'' that addresses wetland issues. The sole flow-charts in
the documents submitted by Michigan to EPA are flow charts contained in
a December 13, 1991 Draft Plan for the Implementation of Executive
Order 1991-31. Those flow-charts specifically pertain to National
Pollutant Discharge Elimination System (NPDES) permits and permits to
construct air emission sources. The December 13, 1991 Draft Plan also
specifically states that the wetland permitting process remains
unchanged by Executive Order 1991-31.
The United States Department of Interior, Fish and Wildlife Service
provided comments noting that it agreed with EPA that Executive Order
1991-31 did not effect any substantial revisions in Michigan's Section
404 wetland program. The Fish and Wildlife Service also noted that
there are a number of federally listed threatened and endangered
species present in Michigan and that, if EPA determines that EPA's
approval or disapproval of the revisions in Michigan's Section 404
wetlands program may affect these species, EPA would be required under
Section 7(a) of the Endangered Species Act to consult with the Fish and
Wildlife Service.
As described above, Executive Order 1991-31 has not caused any
substantive changes in Michigan's Section 404 wetlands program.
Instead, the only effects that Executive Order 1991-31 have had on
Michigan's Section 404 wetlands program have been to reorganize the
MDNR and transfer certain authorities and duties of the MWRC to MDNR.
EPA therefore has determined that its approval of these revisions in
Michigan's Section 404 wetlands program will not affect endangered
species.
A number of commenters noted that, pursuant to 40 CFR
Sec. 233.16(c), a state may not transfer all or part of its Section 404
program ``from the approved State agency to any other State agency''
until the new agency is approved by EPA. These commenters claimed that
Executive Order 1991-31 effectively abolished the ``old'' MDNR and
created a ``new'' MDNR. These commenters suggested that this transfer
of authority from the ``old'' MDNR to the ``new'' MDNR constituted a
transfer of authority from an ``approved Agency to any other State
agency.''
EPA has determined that the revisions to Michigan's Section 404
wetlands program resulting from Executive Order 1991-31 are consistent
with the requirements of the Clean Water Act and its implementing
regulations. Consequently, MDNR is authorized to administer Michigan's
Section 404 wetland program. The question of whether MDNR remained the
same agency or whether it became ``any other State agency'' as a result
of Executive Order 1991-31, and therefore whether it was authorized to
administer Michigan's Section 404 wetlands program, is not at issue
here. Nevertheless, due to the significant number of comments on this
issue, EPA believes it is appropriate to address this question here.
EPA recognizes that the Michigan Supreme Court has made clear that
Executive Order 1991-31 created a ``new'' MDNR. Dodak v. Engler, 443
Mich. 560 (1993). However, the Michigan Attorney General, in a letter
dated November 8, 1993, has stated that the Executive Order did not
create a new agency. In either event, the question of whether MDNR is a
``new'' agency under state law is not controlling with respect to
whether there has been a transfer of authority from an ``approved
Agency to any other State agency.'' Instead, it is EPA's regulations
which are controlling on this issue.
EPA's regulations at 40 CFR 233.16(c) do not provide clear guidance
on whether the reorganization and consolidation of environmental
programs accomplished by Executive Order 1991-31 constitutes a
``transfer'' of authority requiring prior EPA approval. The preamble to
the 1988 state wetland program regulations similarly fails to provide
any such guidance. See 53 FR 20764 (June 6, 1988). However, the 1980
preamble to the final National Pollutant Discharge Elimination System
(``NPDES'') state program rule, in addressing language at 40 CFR
123.62(c) which is similar to that at 40 CFR 233.16(c), stated:
It was not the intent of the proposal nor is it of these final
regulations to require EPA review in such cases [``nominal changes''
in state agencies]. Only when controlling Federal or State statutory
or regulatory authority is modified or supplemented, or when the
State proposes to transfer all or part of a program from an approved
State agency to another State agency may EPA approval be necessary.
Changes solely to the internal structure of an approved State
agency, with no changes in the overall authority of the agency, do
not require EPA approval.
45 FR 33290, 33384 (May 19, 1980).
Consistent with the above preamble language, EPA interprets the
language of 40 CFR 233.16(c) as not applying to a mere restructuring or
internal consolidation of environmental programs within a state's
executive branch. Instead, the prior EPA approval requirement in 40 CFR
233.16(c) applies in situations where such restructuring or
consolidation impacts the controlling authorities by which a state
implements the Section 404 wetland program.
As described above, MDNR has been the approved State agency for
implementation of Michigan's Section 404 wetland program both before
and after the Executive Order. MDNR's authority and responsibilities
under State law pertaining to wetland matters were not affected by
Executive Order 1991-31. Consequently, there have been no changes of
any significance to the function or structure of the portions of MDNR
that has been approved to implement Michigan's Section 404 wetland
program. Therefore, EPA does not agree with the commenters that
Executive Order 1991-31 constituted a transfer of authority from an
``approved Agency to any other State agency.''
Finally, a number of commenters requested that EPA provide a public
hearing on this matter. Pursuant to 40 CFR 233.16(d)(3), EPA is
required to provide an opportunity for a public hearing whenever a
proposed revision is substantial. 40 CFR 233.16(d)(3) provides that
``substantial revisions include, but are not limited to, revisions that
affect the area of jurisdiction, scope of activities regulated,
criteria for review of permits, public participation, or enforcement
capability.''
EPA has determined that Executive Order 1991-31, in reorganizing
MDNR and transferring responsibilities for assuring interstate,
intrastate and federal-state coordination on wetland matters from MWRC
to MDNR, has not affected a substantial change in Michigan's Section
404 wetlands program. EPA notes that these changes have not affected
any of the items listed in 40 CFR 233.16(d)(3). Moreover, EPA has found
that the comments sufficiently addressed any issues relevant to the
effects of Executive Order 1991-31 and therefore has determined that a
public hearing would not be useful to aid in this review. EPA,
therefore, is not providing an opportunity for a public hearing.
III. EPA's Final Determination
EPA, after review and consideration of all the information
submitted by Michigan and the comments received, has determined that
the revisions to Michigan's wetland program effected by Executive Order
1991-31 comply with the Clean Water Act and its implementing
regulations. Moreover, EPA has determined that the revisions were not
substantial.
Dated: November 3, 1994.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 94-28972 Filed 11-23-94; 8:45 am]
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