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December 1, 2003PRESERVING MICHIGAN'S WATERSEnvironmentalists seek tougher enforcement of wetland protection lawBy JOHN FLESHERAssociated Press Writer When the Michigan Legislature enacted the Wetland Protection Act in 1979, it was widely praised as heralding a commitment to stem the decline of the prized ecosystems. But a quarter-century later, many question whether the law has been implemented in a way that fulfills its promise. Conservation activists contend regulators grant too many permits for projects that degrade wetlands and are too lax in pursuing scofflaws who illegally destroy them. Business organizations also have complaints - mostly about delays in permit approval. But they don't want to change the 20-year policy under which the state Department of Environmental Quality, instead of federal agencies, oversees most wetland activity in Michigan. The DEQ says it does what it can with the resources it has. Steven Chester, who became director this year, says he wants to strengthen wetland law enforcement. "It's an important part of what we do, and we have been criticized for not doing it well enough," said Chester, a former enforcement specialist with the U.S. Environmental Protection Agency and the Michigan attorney general's office. Yet money to put more wetland cops on the beat is scarce, he added. Presently, the DEQ has 32 field staffers to process more than 6,000 applications submitted yearly - not only involving wetlands, but inland lakes and streams and other resources. They're also responsible for monitoring compliance with permit requirements and investigating possible violations. "We're about eight short of where we were two or three years ago," said Mary Ellen Cromwell, assistant division chief for geological and land management. The agency hasn't been able to fill vacancies because of budget cuts. Environmentalists direct their complaints largely at the 12-year administration of Republican Gov. John Engler, who created the DEQ in 1995 and appointed business-friendly Russell Harding director. "Engler unraveled the rules and he did it largely outside the public eye," said Scott McEwen, former program director with the Tip of the Mitt Watershed Council in Petoskey. "He did a lot of damage." Harding, who left office following the election of Democratic Gov. Jennifer Granholm last year, insists neither he nor Engler tried to undermine wetland law. But he offers no apology for urging staffers to accommodate developers and landowners when legally possible. "I saw nothing wrong with development," said Harding, now a consultant and lobbyist in Lansing. "One of my principles is to respect private property rights. My sense was, let's try to be as flexible as we can." Even so, he said, many developers sued the DEQ during his tenure for denying permits. "That's actually been a raging debate since 1979 - conservation organizations say permits are being rubber-stamped, and developers say they're too strict," said Don Tilton, an Ann Arbor wetland consultant. "The truth lies somewhere in the middle." The EPA reached a similar conclusion in a report last fall. The agency spent several years investigating whether the DEQ, which administers federal and state wetland law within Michigan under a 1984 agreement, was performing adequately. The report called for numerous improvements, including toughening state laws and regulations, which it said exempted too many wetlands and activities affecting them. Yet it disagreed with environmentalists who sought revocation of Michigan's authority to administer federal wetland law. DEQ field staffers "work effectively ... to ensure that all possible steps are taken to minimize impacts to wetlands and other aquatic resources," the report said. Residential developers prefer the present arrangement to having the EPA take primary jurisdiction over the state's wetlands, said Lynn Egbert, chief executive of the Michigan Association of Home Builders. "The DEQ works very hard to make the process as smooth as possible," Egbert said. "That doesn't mean to say there aren't impediments, but we keep working through those. Home builders are very sensitive to the needs of the wetlands program." In a Nov. 7 letter, Chester proposed ways for the DEQ to satisfy the EPA's concerns, including taking jurisdiction over more wetlands, limiting exemptions and fully considering how development would affect endangered species. But preservation advocates wonder whether any of those changes - or the DEQ's new leadership - will bring a more skeptical attitude toward permit applications or a crackdown on violators. Prevailing trends are in the other direction, they say. In 1990, the last year of former Gov. Jim Blanchard's term, the DNR took final action on 1,475 applications and approved 1,094, or 74 percent. Three hundred, or 20 percent, were denied. The others were withdrawn or their files were closed for unspecified reasons. The approval rate rose steadily through the early 1990s and hit 85 percent in 1996, the DEQ's first full year of operation. It stayed in the mid- to upper 80s the rest of the decade before jumping to 91 percent last year, when final action was taken on 1,667 permits, with 1,511 issued. Forty-nine permits, or 3 percent, were denied and the rest closed or withdrawn. Harding said regulators cannot withhold a permit simply because they don't want a wetland degraded. "The law doesn't say you can't develop a wetland," he said. "It says you can't if there is a feasible and prudent alternative." He sometimes disagreed with staffers over whether such an alternative existed. In one case, he overruled regulators who had denied a permit for an airport runway in a wetland area of the Thumb. In 1999, the DEQ rejected a proposal to build luxury housing and a golf course in the sensitive Humbug Marsh area on the Detroit River. Harding intervened, and the agency approved a modified construction plan. The project never came to fruition because it also needed federal permits, which the Army Corps of Engineers denied. "That wasn't the only time under Engler when we didn't enforce our own law and we'd push things over on the feds," said Steve Sadewasser, a former DEQ wetland specialist who left the agency after feuding with his bosses. "It wasn't routine, but it happened. That's absolutely awful wetland policy." Harding said he usually didn't get personally involved in permitting decisions but sometimes considered it necessary. "The old DNR was bottom-up, you don't question staff," he said. "I'm proud that we did question staff, although some people didn't like it." Critics also say the state downgraded investigations of illegal wetland destruction once the DEQ was created. "To a large degree, the wetlands program has become a 'paper tiger' in which developers know that there will be no consequences for violating the law," said a 1998 report attributed to anonymous DEQ whistleblowers. It was issued by a Washington, D.C.-based group called Public Employees for Environmental Responsibility. The group cited a 1997 memo from DEQ management that listed six priorities for field staffers. Processing permits came first; enforcement was fifth. DEQ officials later insisted there was no particular order to the list. Wetland enforcement also took a hit when the DNR was divided because only about 15 of its 210 uniformed conservation officers were assigned to the DEQ, Sadewasser said. The others remained with the DNR, handling matters such as fish and game violations. "It completely diminished their ability to do routine (environmental) enforcement," he said. Not true, said Milton Scales, DEQ chief of criminal investigations. The two agencies reached an agreement under which DNR officers continued helping with environmental cases. "They're police officers and we're police officers," he said. "When a crime is in front of us, we're sworn to take appropriate action and that is what they do." Harding said the Legislature heeded his request for more officers, and that criminal prosecutions rose during his tenure. DEQ now has 18 officers, Scales said. DEQ officials acknowledge another frequent criticism: that citizen complaints about possible wetland violations sometimes fall through the cracks. Again, they point to overburdened staffers. "There's just too much on the staff's plate - not enough to people to go around," Cromwell said. The agency established a computerized system for tracking complaints, Harding said, but about 75 percent turn out not to involve illegal activity. Chester declined comment on his predecessor's wetland management, but said his own attitude toward enforcement was "palpably different." "We have an obligation to be efficient as possible when we review permit applications. But we don't have to sacrifice our environmental ethic and our responsibility to comply with the law." --- The EPA report on Michigan wetland protection can be accessed at http://www.epa.gov/region5/water/wshednps/topic-wetlands-activities. htm |
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