Michigan Land Air Water Defense (MLAWD)
is a non-profit, grassroots organization of citizen activists. We oppose Michigan’s mad rush toward fracking, we believe our public lands are held in trust for us and posterity. Unbridled gas development breaches this trust! MLAWD is fighting in the Courts to halt this march toward man-made disaster.
The following was brought to our attention by:
Marcy Colclough, Senior Planner
Southwest Michigan Planning Commission
The EPA needs to hear from citizens that Michigan cannot be allowed to regulate wetlands to a lower standard than what the federal law requires.
Please consider submitting a comment to the EPA as per instructions below. Your input can make the difference.
Wetlands are critical to clean water and we have already lost 50% of them in Michigan. Think about attending or submitting comments regarding Michigan’s Wetland Program during EPA’s public comment period. The EPA will be holding a public hearing in Michigan to receive comments from the public in regards to the changes the Michigan Legislature made to Parts 301 and 303 (e.g. Michigan’s Inland Lakes and Streams and Wetlands Statutes) regarding wetland protection and permitting (PA 98).
Michigan has passed a law that if allowed to stand is not equal to the federal law. EPA has provided MDEQ a preliminary review of Michigan’s new wetland law signed by Gov Snyder this July (see review from EPA below). EPA identified numerous items that don’t comply with federal law for wetland protection. Michigan’s new wetland law, PA 98 included: (1) Changes to the definition of contiguous wetlands regulated by Michigan’s Section 404 program; (2) the addition of new exemptions (for drain commissioners and agricultural uses) from permitting; and (3) changes to the requirements for mitigating the effects of filling wetlands and other waters of the United States.
Michigan citizens should demand that the EPA require Michigan to eliminate those parts of the new law that don’t comply with federal law.
Public Hearing Details:
Wednesday, December 11, 2013
Crowne Plaza Lansing West (formerly known as the Lexington Lansing Hotel), 925 South Creyts Road, Lansing, MI 48917
6:00 pm – Informational Session
7:00 pm – Public Hearing (accepting oral and written comments)
Can’t attend – no worries because written comments will also be accepted until December 18, 2013.
3 Ways to Submit Comments (Be sure to reference Docket ID No. EPA-HQ-OW-2013-0710):
1) Online at www.regulations.gov (the preferred method)
2) Email to email@example.com
3) Mail to EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
More information on the public hearing and comment period – http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2013-0710-0001
Learn more about wetlands – http://www.watershedcouncil.org/water%20resources/wetlands/
EPA comments on Michigan’s new wetland law – May 31, 2013
1. Exemptions from 404 permitting:
- ·30103(1)(d), page 7: Maintenance of agricultural drains. The Bill would exempt maintenance of agricultural drains to restore the design/function as of July 1, 2014. This appears to allow work to expand the capacity of a drainage ditch beyond original contours without a permit until July 1, 2014. The result would be that until July 1, 2014, the language would be inconsistent with the CWA and federal implementing regulations.
- ·30103(1)(g) Maintenance of drains, page 7-8: The Bill would exempt maintenance of drains to restore the design/function as of July 1, 2014. This appears to allow work to expand the capacity of a drainage ditch beyond original contours without a permit until July 1, 2014. The result would be that until July 1, 2014, the language would be inconsistent with the CWA and federal implementing regulations.
- ·30103(1)(g)(vii), page 8: The exemption for extension of culverts is not consistent with CWA.
- ·30103(1)(m), page 9: Controlled access of livestock. EPA seeks clarification of what is being proposed. Construction of crossings involving discharge of fill can only be exempted from 404 for ongoing farming, ranching and silviculture operations.
- ·30305(2)(h)(i), page 20: The Bill would exempt maintenance of agricultural drains to restore the design/function as of July 1, 2014. This appears to allow work to expand the capacity of a drainage ditch beyond original contours without a permit until July 1, 2014. The result would be that until July 1, 2014, the language would be inconsistent with the CWA and federal implementing regulations.
- ·30305(2)(i), page 20: The exemption for drain maintenance does not clarify that sidecasting of the spoil material into areas that are jurisdictional wetlands or other jurisdictional waters requires a permit.
- ·30305(2)(l), page 22: The exemption for maintenance or repair of utility lines, where this involves discharges to waters of the U.S., would not be consistent with CWA.
- ·30305(2)(m), page 22-23: The exemption for installation of utility lines, where this involves discharges to waters of the U.S., would not be consistent with CWA.
- ·30305(2)(o), page 23: The exemption for the placement of biological residues in a wetland (or any Water of the US) is inconsistent with the CWA. Biological materials are explicitly listed in the statutory definition of “pollutant,” and a variety of seminal court cases discusses the “discharge” of woody wetland vegetation into a jurisdictional wetland in the course of landclearing as a 404-regulated discharge. (See for example Avoyelles Sportsmen’s League v. Marsh).
- ·30305(4)(a) Excavation, page 14: The second condition (at 30305(4)(a)(ii)) which must be met before a water is considered jurisdictional could lead to situations in which waters protected under CWA Section 404 would not be protected under this part, thereby making this inconsistent with the CWA.
- ·30305(4)(f), page 24-25: The exemption for agricultural soil and water conservation practices designed, constructed, and maintained for water quality enhancement is not consistent with the CWA, which has no such exemption unless these are conducted in uplands.
- ·30305(5), page 25: Contiguous waters as a result of excavation. The second condition (at 30305(5)(a)(ii)) which must be met before a water is considered jurisdictional could lead to situations in which waters protected under CWA Section 404 would not be protected under this part, thereby making this inconsistent with the CWA.
- ·30305(6)(c), page 25: The exemption for the placement of biological residues in a wetland (or any Water of the US) is inconsistent with the CWA. Biological materials are explicitly listed in the statutory definition of “pollutant,” and a variety of seminal court cases discusses the “discharge” of woody wetland vegetation into a jurisdictional wetland in the course of landclearing as a 404-regulated discharge. (See for example Avoyelles Sportsmen’s League v. Marsh).
2. Other Provisions
- ·Section 30311d(6), Page 36, Line 5: Mitigation credit cannot be generated by placing an easement over the impacted area. This provision is inconsistent with the federal mitigation rule.
- ·Section 30311d(6), Page 36, Line 8: Paying into a fund as a substitute for providing financial assurances is inconsistent with the federal mitigation rule. This does not guarantee the performance of mitigation on the impacted site.
- ·Section 30311d(7), Page 36: It appears that Michigan is proposing an In-lieu Fee (ILF) mitigation program as a compensation option for some permit applicants. If so, Michigan may wish to modify Sec. 30311d. (1) to include ILF as a mitigation option (along with mitigation banks (a) and traditional permittee-responsible mitigation (b)-(d)).
- ·Section 30311d(7), Page 36: If Michigan establishes an ILF program, it will need to develop a set of administrative rules for the program consistent with the federal rules governing ILF programs at 40 CFR 230 Subpart J.
- ·Section 30311d(8), Page 36, Line 27: Any compensatory mitigation rules developed by Michigan will need to be consistent with the federal rules governing compensatory mitigation at 40 CFR 230 Subpart J.
- ·Sec. 30311d(8)(e), Page 37, line 8: This provision is inconsistent with the federal rules governing compensatory mitigation. Under federal rules, compensation can be provided by three mechanisms: permittee-responsible mitigation, mitigation banks, or ILF mitigation programs. This provision would allow permittee-responsible mitigation to be treated like banks (i.e., generate banked credits) while side-stepping the bank review and approval process.
- ·30312(6) and 30312(7), page 39-40: EPA will review any general permits for consistency with federal regulations.
- ·30321(5) on page 43: “Contiguous” is used in Michigan’s statutory definition of “wetland” at 30301(m), and is defined by Rule 281.921(1)(b). “Contiguous” is also used in the definition of “adjacent” in the CWA 404(b)(1) Guidelines at 40 C.F.R.§ 230.3(b). “Adjacent” is a key term governing the geographic scope of the CWA. Under its assumed 404 program, Michigan must regulate all waters adjacent to inland lakes, ponds, rivers, and streams. The proposed definition of “not contiguous” in 30321(5) of the Bill narrows the State’s current broad definition of “contiguous” and is inconsistent with federal regulation, guidance and case law because it could interpreted to exclude adjacent waters and wetlands required to be protected under the federal 404 program.
- ·30321(6), page 43-44: This provision is inconsistent with federal regulation, guidance and case law. Agricultural drains must be considered in determining connection to waters of the U.S.
Sunday, December 15, 2013, from 5:30 – 8:30 pm at the Old Dog Tavern featuring: Who Hit John? (rock band), Tasleem Jamila (spoken word artist), and Pun Plamondon (storyteller). Update: Chuck Whiting & the Tip Top Ramblers will also perform at the fundraiser.
The Old Dog Tavern is at 402 E Kalamazoo Ave, Kalamazoo, MI 49007. (269) 381-5677.
MLAWD v MDNR: Round 2
Following an unfavorable ruling in Barry County on some of MLAWD’s claims, Barry County Circuit Court Judge Amy McDowell transferred our case against the Michigan Department of Natural Resources to Allegan County Circuit Court on her own motion
“Although she ruled against us, I believe Judge McDowell sees merit in our case moving forward”, said Steve Losher, MLAWD President. “I just don’t think she wanted to take it on, so she punted it to Allegan.”
The legal landscape in Allegan County differs from Barry County in several ways, and these differences present opportunities for the advancement MLAWD’s suit:
1) Judge McDowell ruled that, since all public land in Barry County is currently leased as “non-development”, MLAWD’s case is not “ripe for review”. This is not the case in Allegan County, as there exist within the Allegan State Game Area (ASGA) at least one “development” lease, and ten or more leases classified as “development with restrictions”. These development leases move the issue of “ripeness” to the fore.
2) A separate lawsuit has been filed in Allegan County regarding the Bureau of Land Management’s leasing of over 33,000 acres of federally owned minerals within the ASGA. This federal case may well have bearing on MLAWD’s case, and vice versa. Attorneys for the two plaintiffs are exploring these synergies.
3) MLAWD’s case has been assigned to Circuit Judge Margaret Zuzich Bakker. Of the two Allegan Circuit judges, we believe Judge Bakker to be more sympathetic to issues raised by MLAWD.
4) Judge McDowell did not rule against all legal issues which arose in Barry County, and, therefore, these will proceed before Judge Bakker along with issues arising in Allegan County.
The implications for leasing of public surface and mineral rights raised by MLAWD v MDNR are enormous, and deserve a thorough airing and discussion, as there exist significant disputed facts in this case that only a trial can resolve.
A scheduling conference will determine the time table to be followed in Allegan Circuit Court.
As we proceed, MLAWD will continue to educate and advocate for protection of Michigan’s unique public lands, and to apply pressure on the MDNR to uphold its public trust duties under Michigan law. As always, we encourage, and thank you for, your support.
If you would like an approximately weekly email that gives a list of links to the latest news in energy and environmental issues, subscribe to Craig Brainard’s Fracking Linkletter. Email firstname.lastname@example.org!
Thanks, Craig for a fantastic service!
Shale natural gas and oil production is declining faster than it can be recovered, say industry scientists. Read this short, but interesting article on how the energy return on investment (EROI – or how much energy it takes to produce energy) is not expected to be substantial for gas and oil production by the end of the decade.