Changes to Michigan Wetland Law Same Old Song

The regulation of Michigan wetlands by the Department of Environmental Quality has been a disaster. Overzealous DEQ regulators have made it increasingly difficult for residential and business property owners to obtain a permit to fill even the smallest wetlands.

Property owners often are incredulous when they are told by the agency that a wet spot in their backyard is a regulated wetland. They are further flummoxed upon learning that Michigan wetland law requires that there be a "reasonable and prudent alternative" to filling a wetland before a permit can be granted. While at first blush this may seem, well ... reasonable and prudent, the agency has determined that landowners should purchase other property to satisfy the requirement - clearly a novel interpretation that is neither reasonable nor prudent and has the practical effect of allowing the agency to deny most permit applications.

In her 2009 State of the State address, Gov. Jennifer Granholm called for returning the state's wetland program to the federal government, effectively bringing Michigan in line with 48 other states. Michigan legislators, however, decided that even though the state wetland program is largely dysfunctional, they would still continue funding the program.

In exchange for political support necessary to continue the program, a number of reforms were enacted. Major changes to the state wetland program include:

General Permits for Minor Projects — These over-the-counter permits are similar to permits given nationwide by the U.S. Army Corp of Engineers.
Wetland Delineation — The department will be required to use the same wetland delineation method employed by the U.S. Army Corp of Engineers.
Feasible and Prudent Alternatives — The new state standard will be more similar to the feasible and prudent standard employed by the EPA (the new language is still vague and subject to DEQ interpretation).
Guidance Documents and Operational Memorandum — The new law clarifies that guidance documents and operational memorandums are not legally binding (this is just a codification of existing common law where the courts have already determined that such paperwork is not binding on outside parties).
Mitigation — Mitigation standards must now conform to federal standards. In the past, it has been difficult to comply with Michigan's rigid standards for mitigation.
Joint Jurisdiction Between State and Federal Government — The DEQ will be required to seek a broader waiver from the EPA for permit categories (nothing requires the Feds to grant these requests).

There is a common thread running through the changes to the state wetland law required by the new legislation — the state program becomes much closer to the federal program. Legislators have apparently concluded that the federal approach to wetland regulation is superior to the state approach.

This means Michigan will spend approximately $2 million a year to run a program the U.S. Army Corp operates in 48 other states with federal dollars. It does not bode well for Michigan's fiscal future if lawmakers cannot muster the courage to cut expenditures when there is a redundant program like the state wetland program that the federal government is willing to operate.

Gov. Granholm is equally at fault for not vetoing this wasteful spending, especially considering she is the one who proposed returning the wetland program to the EPA. Once a government program is on the books it seems almost impossible to get rid of it, which is something voters should consider when politicians propose new programs.

Changes to the Michigan wetland law are also problematic from a regulatory standpoint. Although some changes are mostly positive, they will likely prove ineffective over time. No matter how good the intention of the Legislature is, government bureaucrats still control the process. Past attempts to control overzealous regulators have been largely ineffective. Legislators have little control over the agency's ability to promulgate regulations, which almost invariably lead to onerous new requirements on Michigan property owners.

It appears as if it's business as usual in Lansing, which is not good news for the state's property owners or future.

#####

Russ Harding is senior environmental analyst and director of the Property Rights Network at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.