[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Notices]
[Pages 89930-89933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29888]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2013-0710; FRL-9956-48-Region 5]


State Program Requirements; Approval of Program Revisions to 
Michigan's Clean Water Act Section 404 Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of decision.

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SUMMARY: In a July 5, 2013, letter, the Michigan Department of 
Environmental Quality (MDEQ) requested that the Environmental 
Protection Agency (EPA) approve revisions to the State's Clean Water 
Act (CWA) Section 404 permitting program that resulted from the 
enactment of Michigan Public Act 98 (PA 98). CWA Section 404 requires 
permits for dredge and fill activities in wetlands subject to federal 
jurisdiction. A state CWA Section 404 program must be conducted in 
accordance with the requirements of CWA Section 404 and its 
implementing regulations. Any revisions to state CWA programs must be 
approved by EPA before the revision may be implemented. Substantial 
modifications to a state's CWA Section 404 program become effective 
upon EPA approval and publication of EPA's decision in the Federal 
Register.
    EPA has reviewed the proposed revisions to Michigan's Section 404

[[Page 89931]]

program within the sections of the Michigan statute modified by PA 98 
and has found a majority of revisions within PA 98 sections to be 
consistent with the CWA and approvable. Other revisions are 
inconsistent with the CWA and thus not approvable.

DATES: Pursuant to 40 CFR 233.16(d)(4), the following revisions to 
Michigan's CWA Section 404 program are approved and in effect upon 
publication of this notice.

FOR FURTHER INFORMATION CONTACT: Melanie Burdick, Watersheds and 
Wetlands Branch (WW-16j), U.S. Environmental Protection Agency, Region 
5, 77 W. Jackson Blvd., Chicago, Illinois 60604; call toll free: 800-
621-8431, weekdays, 8:30 a.m. to 4:30 p.m. Central time; fax number: 
312-697-2598; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This action applies to the MDEQ's CWA Section 404 program. Approval 
of these provisions affects those seeking CWA Section 404 dredge and 
fill permits from the State of Michigan.

B. How can I get copies of this decision and other related information?

Docket
    EPA has established a docket for this action under Docket ID No. 
EPA-HQ-OW-2013-0710; [FRL 9956-48-REGION 5]. All publicly available 
materials related to this action are available either electronically 
through www.regulations.gov or in hard copy at the Water Docket in the 
EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. 
NW., Washington, DC. The EPA Docket Center Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744. You may access this Federal Register document electronically 
from the Government Printing Office under the ``Federal Register'' 
listings at FDSys http://www.gpo.gov/fdsys/. Insert: EPA-HQ-OW-2013-
0710; FRL 9956-48-Region 5 in the search field.

II. Background and Scope of MDEQ Program Revisions

    Under Section 404 of the CWA, permits are required for activities 
involving discharges of dredged or fill material to waters of the 
United States, including wetlands, lakes and streams. Michigan assumed 
CWA Section 404 permitting authority for its inland waters and wetlands 
in 1984. A state-assumed CWA Section 404 program must be conducted in 
accordance with the requirements of the CWA and its implementing 
regulations at 40 CFR part 233 (33 U.S.C. 1344(h), 40 CFR 233.1). In 
February 1997, EPA received a request from the Michigan Environmental 
Council to either ensure that the administration of Michigan's Section 
404 program was consistent with the CWA, or withdraw Michigan's 
authority to administer the Section 404 program. In response to the 
request, EPA initiated an informal review of Michigan's administration 
of the Section 404 program. This Program Review was completed in April 
2008. The 2008 Program Review identified several deficiencies in 
Michigan's Section 404 program. In response to the 2008 Program Review 
findings, MDEQ proposed a list of corrective actions to address those 
deficiencies. These corrective actions included making changes to the 
State's statutes governing state administration of the Section 404 
program. On July 2, 2013, Michigan enacted PA 98 which contained 
significant amendments to Parts 301 (Inland Lakes and Streams) and 303 
(Wetlands Protection) of Michigan's Natural Resources and Environmental 
Protection Act. The statutory amendments included changes intended to 
address the legislative corrective actions identified in EPA's 2008 
Program Review; changes to the definition of contiguous wetlands 
regulated by Michigan's Section 404 program; the addition of new 
exemptions from permitting; and changes to the requirements for 
mitigating the effects of filling wetlands and other waters of the 
United States. The program revisions resulting from enactment of PA 98 
are described EPA's Supporting document for EPA decision to approve/
deny Michigan's section 404 program statute changes in Public Act 98 
which can be found in the docket for this action which is available 
electronically through www.regulations.gov, Docket ID No. EPA-HQ-OW-
2013-0710.
    On July 5, 2013, the MDEQ submitted PA 98 to EPA as a proposed 
revision to its CWA Section 404 program and requested EPA approval of 
the revisions. Per the regulations at 40 CFR 233.16(d)(3), EPA held a 
public hearing on December 11, 2013, sought public comment, and 
consulted with the Corps of Engineers and the U.S. Fish and Wildlife 
Service on the program revisions contained in PA 98. (Note: The U.S. 
National Marine Fisheries Service did not respond to EPA's request to 
consult.) The EPA also consulted with interested tribes per Executive 
Order 13175 and EPA policy.
    In a letter to the MDEQ dated November 24, 2014, EPA requested 
clarification on the State's interpretation of a number of provisions 
within PA 98. The Michigan Department of the Attorney General responded 
to this request for clarification in a letter dated May 27, 2015. A 
copy of these letters can be found in the docket at: 
www.regulations.gov, Docket ID No. EPA-HQ-OW-2013-0710.
    EPA has reviewed the proposed revisions within the sections of the 
Michigan statutes modified by PA 98, and has found a majority of the 
revisions to be fully consistent with the CWA and are approved. Other 
revisions are inconsistent and thus not approved.

III. Summary of Public Comments

    The EPA solicited and received public comment on the proposed 
revisions to Michigan's Section 404 program resulting from PA 98 via 
testimony at a December 11, 2013, public hearing, electronically 
through www.regulations.gov, and by written submissions to the docket 
for this action. Through these efforts, EPA received a total of 286 
comments. Of the 134 unique comments received: 82 expressed support of 
EPA approval of the proposed program revisions resulting from PA 98, 49 
opposed EPA approval, and the remaining commenters did not express 
support for approval or disapproval of the revisions. The majority of 
commenters simply indicated whether they supported or did not support 
EPA approval of the program revisions in PA 98. While some commenters 
provided detailed rationale for their viewpoint, many did not. Most 
comments that supported approval of the program revisions in PA 98 also 
identified support for economic development in Michigan. Comments 
supporting approval of the revisions were from a diverse group of 
interests including agriculture, oil and gas, drain commissions, land 
development, home building, and manufacturing. Those commenters who 
expressed opposition to approval of the program revisions highlighted 
concern for environmental protection of rivers, lakes, and wetlands. 
These commenters felt that PA 98 did not adequately address the 
inconsistencies between Michigan's program and the CWA identified in 
EPA's 2008 Program Review and that additional provisions in PA 98 were 
inconsistent with the CWA requirements. Regardless of positions taken 
on EPA's approval of the

[[Page 89932]]

proposed program revisions, most commenters supported Michigan's 
retention of the CWA Section 404 permitting program. Consistent with 
Executive Order 13175 and EPA's policy on Consultation and Coordination 
with Indian Tribes (http://www.epa.gov/tribal/consultation/consult-policy.htm), EPA held government-to-government consultation 
teleconferences with four interested Michigan tribal organizations on 
January 23, 2014. EPA received written comments from two tribes. All 
public comments received, EPA's Summary of Public Comments and 
Responsiveness Summary and a summary of EPA's consultation with tribes 
can be found in the docket at: www.regulations.gov, Docket ID No. EPA-
HQ-OW-2013-0710; [FRL 9956-48-REGION 5].

IV. Notice of Decision

    Pursuant to 40 CFR 233.16(d)(4), EPA has reviewed the proposed 
revisions to Michigan's Section 404 program resulting from enactment of 
PA 98 for consistency with the CWA and its implementing regulations. 
Where EPA has determined that the proposed revisions meet the minimum 
requirements of the CWA and implementing regulations, EPA has approved 
the revisions which are in effect upon publication of this notice. EPA 
has disapproved those revisions that do not meet these minimum 
requirements.
    EPA's review of the proposed revisions to Michigan's Section 404 
program resulting from PA 98 does not constitute a comprehensive review 
of the State's program for conformance with the CWA, but rather 
addresses only proposed changes to Michigan's program related to PA 98 
ensuring their consistency with CWA Section 404 and its implementing 
federal regulations. Information about the proposed revisions to 
Michigan's Section 404 program pursuant to PA 98, the public hearing, 
EPA's response to comments and other supporting documents are available 
at: www.regulations.gov/ (insert: EPA-HQ-OW-2013-0710 in the search 
field).
    I hereby provide public notice that EPA has taken final action on 
the proposed revisions to MDEQ's CWA Section 404 program as outlined in 
Tables 1-2 below.

Table 1--Provisions of PA 98 Consistent With Requirements of CWA Section
                                   404
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        PA 98 Provision--with descriptor                 Decision
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Sec. 1307 Permit Processing Timeframes..........  Approved.
Sec. 30101a. Statement of Purpose...............  Approved.
Sec. 30103(1)(d)(i) and (ii) Exemption for        Approved.
 Maintenance of Agricultural Drains.
Sec. 30103(1)(e) Modification of Waste Treatment  Approved.
 Exemption.
Sec. 30103(1)(f) Modification of Minor Drainage   Approved.
 Exemption.
Sec. 30103(1)(g)(i)-(vi) and (viii) Modification  Approved.
 of Drain Maintenance Exemption.
Sec. 30103(3) Definition of Agricultural Drain    Approved.
 Added.
Sec. 30104 Changes in Michigan's Fee              Approved.
 Requirements.
Sec. 30105(3) and (5) Modification of Public      Approved.
 Notice Provisions.
Sec. 30105(8)(b) Modification of Maintenance and  Approved.
 Repair of Existing Pipelines Provision.
Sec. 30105(9) Modification of Section             Approved.
 Authorizing Conditions for a Minor Project
 Category or General Permit.
Sec. 30105(11) General Permit for Drain           Approved.
 Activities.
Sec. 30305(2)(d) Modification of Exemption for    Approved.
 Grazing.
Sec. 30305(2)(e) Modification of Exemption for    Approved.
 Farming, Horticulture, Agriculture,
 Silviculture, Lumbering and Ranching.
Sec. 30305(2)(h) Modification of Agricultural     Approved.
 Drain Maintenance Exemption.
Sec. 30305(2)(i) Exemption for Drain Maintenance  Approved: EPA
                                                   recommends the
                                                   language is
                                                   clarified.
Sec. 30305(2)(j) Modification of Road             Approved.
 Maintenance Exemption.
Sec. 30305(2)(j) Deletion of Farm Production and  Approved.
 Harvesting Exemption.
Sec. 30305(2)(k) Modification of Maintenance of   Approved.
 Public Streets Exemption.
Sec. 30305(2)(l) Modification of Utility Line     Approved: with the
 Maintenance Exemption.                            condition that the
                                                   2011 MOA will be
                                                   revised.
Sec. 30305(2)(o) Deletion of Construction of      Approved.
 Tailings Basin Exemption.
Sec. 30305(4)(a) Modification of Wetlands         Approved.
 Incidentally Created as Part of Sand, Gravel or
 Mineral Mining Exemption.
Sec. 30305(8) Definition of Agricultural Drain..  Approved.
Sec. 30306(1)-(6) Modification of Application     Approved.
 Requirements and Fees.
Sec. 30306(7) Modification of Conditional         Approved.
 Permits Under Emergency Conditions.
Sec. 30306b Modification of Application Fees and  Approved.
 Other Requirements.
Sec. 30311(5)-(6) Consideration of Feasible and   Approved.
 Prudent Alternatives.
Sec. 30311a Deletion of Former Sections           Approved.
 30311a(2)-(5) on Consideration of Feasible and
 Prudent Alternatives.
Sec. 30311d(5) Compensatory Mitigation Ratios...  Approved.
Sec. 30311d(6) Conservation Mitigation Credits    Approved: the
 for Easements for Impacted Agricultural Sites.    provision for a
                                                   ``stewardship fund.''
Sec. 30311d(7) Stewardship Fund.................  Approved.
Sec. 30311d(8)(a)-(e) Compensatory Mitigation     Approved.
 Rulemaking.
Sec. 30311d(9)(a),(b), and (c) Rulemaking to      Approved.
 Encourage Banks.
Sec. 30311d(10) Mitigation Bank Funding Program.  Approved.
Sec. 30312(5) General Permit Authority..........  Approved.
Sec. 30312(6) General Permit for Blueberry        Approved.
 Farming.
Sec. 30312(7) General Permit for Blueberry        Approved.
 Farming.

[[Page 89933]]

 
Sec. 30321(7) Defines Drains, Ditches, etc. as    Approved: the second
 Not being Wetlands.                               sentence ``A
                                                   temporary obstruction
                                                   of drainage . . .
                                                   identified as a
                                                   wetland pursuant to
                                                   section 30301(2).''
Sec. 30328 State Program Limited to Navigable     Approved.
 Waters and Waters of the U.S..
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   Table 2--Provisions of PA 98 Inconsistent With Requirements of CWA
                               Section 404
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        PA 98 Provision--with descriptor                 Decision
------------------------------------------------------------------------
Sec. 30103(1)(g)(vii) Modification of Drain       Disapproved.
 Maintenance Exemption.
Sec. 30103(1)(m) Exemption for Controlled         Disapproved.
 Livestock Access.
Sec. 30305(2)(m) Modification of Utility Line     Disapproved.
 Installation Exemption.
Sec. 30305(2)(o) Exemption for Placement of       Disapproved.
 Biological Residues in Wetlands.
Sec. 30305(4)(b) Modification of Exemption for    Disapproved.
 Wetlands Created as a result of Construction or
 Operation of a Waste Treatment Pond or Storm
 Water Facility.
Sec. 30305(4)(d) Modification of Exemption for    Disapproved.
 Wetlands Created as a Result of Construction of
 Drains to Remove Excess Soil Moisture from
 Upland Areas Primarily Used for Agriculture.
Sec. 30305(4)(e) Exemption for Wetlands Formed    Disapproved.
 in Roadside Ditches.
Sec. 30305(4)(f) Exemption for Wetlands Created   Disapproved.
 as a Result of Agricultural Soil and Water
 Conservation Practices.
Sec. 30305(5) Contiguous Waters as a Result of    Disapproved.
 Excavation.
Sec. 30311(7) Consideration of Feasible and       Disapproved.
 Prudent Alternatives.
Sec. 30311d(6) Conservation Mitigation Credits    Disapproved the
 for Easements for Impacted Agricultural Sites.    statement:
                                                   ``protection and
                                                   restoration of the
                                                   impacted site.''
Sec. 30321(5) Definition of ``Not Contiguous''..  Disapproved.
Sec. 30321(6) Use of Drains to Establish          Disapproved.
 Jurisdiction.
Sec. 30321(7) Defines Drains, Ditches, etc. as    Disapproved: the first
 Not Being Wetlands.                               sentence ``A drainage
                                                   structure such as a
                                                   culvert, ditch, or
                                                   channel, in and of
                                                   itself, is not a
                                                   wetland.''
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    Authority: This action is taken under the authority of Section 
404 of the Clean Water Act as amended, 42 U.S.C. 1344.

    Dated: December 2, 2016.
Robert A. Kaplan,
Acting Regional Administrator.
[FR Doc. 2016-29888 Filed 12-12-16; 8:45 am]
 BILLING CODE 6560-50-P