[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Proposed Rules]
[Pages 14846-14848]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7820]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 233

[FRL-5803-4]


Modification of Michigan's Assumed Program to Administer Section 
404 Permitting Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed approval; request for public comment.

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SUMMARY: This document announces EPA's intention to approve 
modification of Michigan's assumed Clean Water Act Section 404 (Section 
404) permitting program, specifically, to explicitly and formally 
recognize that a recent internal reorganization of Michigan's 
environmental agencies is consistent with the minimum requirements of 
the State Section 404 program regulations. EPA invites public comment 
on its approval of any modification of the State program that may have 
resulted from the reorganization.

DATES: Comments on this document must be received in writing by April 
28, 1997.

ADDRESSES: Written comments on today's notice may be submitted to Jo 
Lynn Traub, Director, Water Division, Attn: Michigan Section 404 
Program Modification, U.S. Environmental Protection Agency, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. In the alternative, EPA 
will accept comments electronically. Comments should be sent to the 
following Internet Email address: [email protected]. Electronic 
comments must be submitted in an ASCII file avoiding the use of special 
characters and any form of encryption. EPA will print electronic 
comments in hard-copy paper form for the official administrative 
record. EPA will attempt to clarify electronic comments if there is an 
apparent error in transmission. Comments provided electronically will 
be considered timely if they are submitted electronically by 11:59 p.m. 
(Central time) April 28, 1997.

FOR FURTHER INFORMATION CONTACT: Kevin Pierard, Chief, Watersheds and 
Non-Point Source Programs Branch, at the EPA address noted above or 
telephone at (312) 886-4448.
    A copy of the supporting information for today's notice is 
available for review at: EPA, Region 5, 77 West Jackson Boulevard, 16th 
Floor, Chicago, Illinois; Library of Michigan, Government Documents 
Section, 717 West Allegan, Lansing, Michigan; Olson Library, Northern 
Michigan University, Harden Circle Drive, Marquette, Michigan; and 
Detroit Public Library Main Branch, Sociology and Economics Department, 
5201 Woodward Avenue, Detroit, Michigan. To arrange for access to the 
docket materials in Chicago, call (312) 886-4448 between 8 a.m. and 
4:30 p.m. (Central time); in Lansing, call 517-373-9489 between 9 a.m. 
and 6 p.m. on Mondays through Saturdays and between 12 p.m. and 4 p.m. 
on Sundays (Eastern time); in Marquette, call 906-227-2260 between 8 
a.m. and 12 a.m. on Mondays through Thursdays, between 8 a.m. and 9 
p.m. on Fridays, and between 10 a.m. and 6 p.m. on Sundays (Eastern 
time); and in Detroit, call 313-833-1440 between 9:30 a.m. and 5:30 
p.m. on Tuesdays and Thursdays through Saturdays, and between 1 p.m. 
and 9 p.m. on Wednesdays (Eastern time).
    The supporting information for today's notice includes: a copy of 
Executive Order 1995-18 signed by the Governor of Michigan on July 31, 
1995; copies of the correspondence from Michigan to EPA dated January 
19, 1996, regarding the effects of the executive order on Michigan's 
Section 404 program; a statement of the Michigan Attorney General dated 
June 13, 1996; Program documents submitted to EPA in support of 
Michigan's original (1983) assumption request; the materials submitted 
by Michigan and considered by EPA in approving revisions to Michigan's 
Section 404 program on November 25, 1994; May 20, 1994, comments 
submitted by the National Wildlife Federation and Michigan United 
Conservation Club to EPA which EPA is treating as a petition to 
withdraw Michigan's Section 404 program; a June 14, 1996, letter from 
the Michigan Environmental Council to EPA regarding Michigan Public Act 
132 of 1996; a February 4, 1997, letter and attached report from the 
Michigan Environmental Council to EPA requesting that EPA withdraw 
Michigan's Section 404 program; and EPA's preliminary finding of no 
substantial modification and preliminary approval of any revisions 
resulting from Executive Order 1995-18.

SUPPLEMENTARY INFORMATION: The State of Michigan assumed Federal Clean 
Water Act Section 404 permitting authority on October 16, 1984. 
Procedures for revision of State programs at 40 CFR 233.16 require that 
EPA review any revisions to state assumed Section 404 programs, 
determine whether such revisions are substantial, and approve or 
disapprove the revisions.
    On July 31, 1995 Governor Engler of Michigan issued Executive Order 
1995-18, which elevated the former Environmental Protection Bureau of 
the

[[Page 14847]]

Michigan Department of Natural Resources (MDNR) to full independent 
departmental status as the Michigan Department of Environmental Quality 
(MDEQ). MDEQ retained all of its environmental responsibilities and 
virtually all of the personnel formerly assigned to it as a bureau in 
the MDNR, including its statutory and regulatory obligations and 
responsibilities to administer Michigan's federally approved CWA 
section 404 program.
    EPA announces today that has made preliminary determinations that 
the executive order did not make any substantial changes in Michigan's 
Section 404 program, and that any changes to the Michigan program 
resulting from the executive order should be approved. While not 
required to do so according to the State section 404 program 
regulations, EPA invites public comment concerning the Agency's 
conclusions, specifically, its preliminary determination that the 
executive order caused no substantial revisions to Michigan's Section 
404 program, as well as EPA's preliminary decision to approve any 
revisions to Michigan's Section 404 program that resulted from the 
executive order. EPA may conduct a public hearing, if there is 
significant public interest based on requests received.
    EPA notes that it currently has pending before it a May 20, 1994, 
petition to withdraw that was filed by the National Wildlife Federation 
(NWF) and Michigan United Conservation Clubs (MUCC), as well as a 
February 4, 1997, petition to withdraw that was filed by the Michigan 
Environmental Council (MEC). EPA has commenced informal investigations 
into the allegations in those Petitions to determine whether there is 
cause to commence withdrawal proceedings.
    EPA further notes that MEC, by letter dated June 14, 1996, has 
raised concerns regarding the impact of Michigan's recent enactment of 
Public Act 132 of 1996 on Michigan's Section 404 program. In response 
to that letter, EPA is currently conducting an informal investigation 
into Michigan's Public Act 132 of 1996 and its potential impact on 
Michigan's federally delegated and authorized programs, including 
Section 404.
    EPA's preliminary decision only addresses, and this notice is 
seeking comment only on, the impact of the executive order noted above 
on Michigan's Section 404 program. EPA's preliminary decision does not 
address the issues raised by NWF, MUCC and MEC in their Petitions or by 
MEC regarding Public Act 132 of 1996. EPA intends to address those 
issues in the course of the separate informal investigations described 
above.

Regulatory Assessment Requirements

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735; October 4, 1993), the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The Office of Management and Budget (OMB) has exempted EPA action 
on State Section 404 programs from OMB review.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year.
    If EPA finally determines that any revisions to Michigan's Section 
404 program resulting from the executive order should be approved, 
EPA's determination would contain no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. Instead, EPA's determination 
would merely recognize an internal reorganization of an existing 
assumed State Section 404 program. EPA has determined that such a 
determination would not contain any Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, EPA's determination would not be subject to the requirements 
of section 202 of the UMRA.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements. 
Because EPA's determination to approve of any revisions to Michigan's 
Section 404 program resulting from the executive order would merely 
recognize an internal reorganization of an existing assumed State 
Section 404 program, EPA has determined that such a determination would 
contain no regulatory requirements that might significantly or uniquely 
affect small governments.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) provides that, whenever an 
agency promulgates a final rule under 5 U.S.C. Sec. 553, after being 
required to publish a general notice of proposed rulemaking, an agency 
must prepare a final regulatory flexibility analysis unless the head of 
the agency certifies that the final rule will not have a significant 
economic impact on a substantial number of small entities. 5 U.S.C. 604 
& 605. The Regional Administrator today certifies, pursuant to section 
605(b) of the RFA, that approval of any revisions to Michigan's Section 
404 program resulting from the executive order will not have a 
significant impact on a substantial number of small entities.
    The basis for the certification is that EPA's approval would simply 
result in an administrative change in the structure of the assumed 
Section 404 program, rather than a change in the substantive 
requirements imposed on any small entity in the State of Michigan. Such 
an approval would not affect the substantive regulatory requirements 
under existing State law to which small entities are already subject. 
Additionally, approval of the Section 404 program modification would 
not

[[Page 14848]]

impose any new burdens on small entities.

Paperwork Reduction Act

    This preliminary determination contains no requests for information 
and consequently is not subject to the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq.

    Dated: March 14, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-7820 Filed 3-27-97; 8:45 am]
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