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December 1, 2003PRESERVING MICHIGAN'S WATERSMichigan jumps into debate over national wetland policyBy JOHN FLESHERAssociated Press Writer As Michigan prepares to observe the silver anniversary of its 1979 wetland protection law, a longstanding partnership with the federal government on wetland oversight faces an uncertain future. Congress began regulating wetlands seven years before the state of Michigan did - with the 1972 Clean Water Act. In 1984, the Environmental Protection Agency authorized Michigan to administer federal wetland programs within the state. That means in most cases, people wanting to develop Michigan wetlands need apply only with the state Department of Environmental Quality, which determines whether the project meets state and federal guidelines. If so, it issues a joint permit. Separate approval from federal agencies is still required for projects affecting coastal wetlands - those linked directly to the Great Lakes or connecting channels. Regulators and business interests say the arrangement has worked fairly well. But a U.S. Supreme Court ruling has ignited a fight over whether federal law shields from destruction shallow pools, bogs and other "isolated" wetlands not directly linked to a navigable water body. The EPA and the Army Corps of Engineers may wind up overseeing considerably less wetland acreage than before. If that happens, Michigan could feel a ripple effect even though its wetland law would remain intact. "The Great Lakes ecosystem is affected by a lot of states, not just us," said Peg Bostwick, wetland specialist with the Michigan Department of Environmental Quality. "Pollution levels are determined by the character of wetlands around the entire system." Also, the Michigan law exempts from state regulation an estimated 271,534 acres of small, isolated wetlands long considered under federal jurisdiction. They would be totally unprotected if federal agencies backed away, and Michigan's working relationship with Washington disrupted, DEQ Director Steven Chester said. The Supreme Court ruling involved a dispute between the Corps of Engineers, which enforces federal wetland law, and officials in suburban Chicago. Local governments there wanted to put a landfill in an abandoned quarry where ponds had formed. The Corps balked, declaring the site a wetland under federal control. The abandoned quarry was a federal waterway, the Corps argued, because it was home to migratory birds, which affect interstate commerce by causing birdwatchers and hunters to cross state lines and spend money. But on a 5-4 vote, the high court said the Corps had overreached. Writing for the majority, Chief Justice William Rehnquist questioned whether Congress intended the Clean Water Act to protect "isolated" wetlands - those not adjacent to navigable waterways. Federal wetland policy is based on a section of the act regulating discharges of dredged or fill material into "navigable waters," which the law defines as "the waters of the United States." The ruling elated property-rights advocates and dismayed environmentalists, who suspected lower courts and the Bush administration would interpret it as a signal to loosen up on wetland protection. Sure enough, last January the EPA and the Corps of Engineers ordered field staffs to check with headquarters before asserting jurisdiction over isolated wetlands in the future. They also announced plans to reconsider which waters were covered by the Clean Water Act in light of the Supreme Court's ruling, and asked for suggestions. The response from Michigan's DEQ: The system's working fine; leave it alone. About 17 percent of the state's wetlands - an estimated 930,856 acres - are not physically connected to lakes or streams. They could lose federal protection if the government drops jurisdiction over isolated waters, Chester said in a memo to the agencies last spring. Most still would be covered under Michigan law, but the 271,534 acres of small wetlands would have neither state nor federal protection. Also, Chester said, redrawing the jurisdictional map could force people seeking development permits in Michigan to spend more time navigating the bureaucracy than they do now. Other states have swamped the feds with similar feedback, which may be giving the administration second thoughts about unraveling wetland regulation, said Patrick Parenteau, an environmental law specialist at the University of Vermont. "The states are saying, 'We've got programs in place, we've built up staff, we're way too invested in the present arrangement to change jurisdictional boundaries now,"' he said. Meanwhile, U.S. Rep. John Dingell, D-Dearborn, is sponsoring legislation that would override the Supreme Court and make clear that federal law protects smaller, isolated wetlands. "The legislative history of the Clean Water Act clearly and unambiguously states that the statute applies to all the waters of the United States," he said. "I know this because I personally included it in the Congressional Record in 1972." Dingell said if the Bush administration rewrites the rules in keeping with the court decision, developers would have "an unfettered ability to fill, bulldoze and destroy" millions of acres of small wetlands that are prime breeding habitat for ducks and other waterfowl. "This could mean drastically shortened hunting seasons - or no season at all," he said. Others say such doomsday scenarios are unlikely. If the federal government scales back its wetland jurisdiction, state agencies could make up for it by expanding theirs, said M. Reed Hopper, an environmental law attorney who represents developers. But some curbs on wetland regulations wouldn't be a bad idea because they often prevent owners from making profitable use of their land and provide no compensation, said Hopper, based in Sacramento, Calif. "We want to ensure that private rights like reasonable use of property are not undermined by illegal acts of the government," he said. |
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