environmental_protection_agency-logoFor Immediate Release
November 17, 2014
Last week, the final comment period closed on a lengthy rule-making process regarding the definition of “Waters of the United States” within the Clean Water Act.
While comments from Michigan residents are a mixed bag, conservation organizations including hunting and fishing organizations throughout the country have shown support for this rule-making. Michigan residents may not fully understand that jurisdictional clarification will have little day-to-day impact in most cases given that Michigan administers a unique assumption of the federal wetlands program which already provides clarification of jurisdictional issues and protects more wetland areas than the federal Clean Water Act. However, absent this state program, much of our critical fisheries and wildlife habitat would be in jeopardy, which is why MUCC submitted the following comments.
Supreme Court decisions and subsequent U.S. Environmental Protection Agency (EPA) guidance have caused confusion in establishing Clean Water Act jurisdiction and in implementing its programs. This uncertainty has led to many waters around the country not being sufficiently protected, as well as confusion, delay, and wasted resources within the regulated community and among the agencies making jurisdictional determinations and enforcing the Clean Water Act. The proposed rule will clarify the Clean Water Act’s jurisdiction, reduce uncertainty, and protect waters throughout the Great Lakes watershed and across America. For these reasons, MUCC strongly supports the proposed rule making and asked that it would be extended to include areas known as the “duck factory”, the prairie pothole region west of the Great Lakes.
Strong Support for Michigan’s Assumption of the Federal Sections 402 and 404 Programs 
As Michigan is only one of two states that administer both Sections 402 and 404 of the CWA, the proposed rule will not significantly impact Michigan, except for those waters where the U.S. Army Corps of Engineers has retained administration of the Section 404 Program.
Yet, Michigan’s program has been consistently on shaky ground for the last 6 or more years, at one time due to lack of funding, and more recently due to changes in the Michigan law that continue to provide some exemptions that EPA has not yet approved. Our members have shown consistent support, including adoption of a resolution in 2009, for keeping a unique Michigan wetland protection program to avoid the return of wetland regulation to the federal government. MUCC urges the U.S. EPA and U.S. ACE to work cooperatively with the State of Michigan to keep this program running at the state level.
The Proposed Rule Is Supported By Legislative History. 
When passing the Clean Water Act in 1972, Congress made it clear that the scope of the Clean Water Act was to be far-reaching. The Act’s ambitious goal—“to restore and maintain the chemical, physical and biological integrity of the Nation’s water”—required extensive federal authority over the “Nation’s waters.”  MUCC believes that given Congress’ clear intent that the Clean Water Act address pollution at its source and its recognition that waters are interconnected, the scope of the proposed rule is well within Congressional intent and is legal.
The Proposed Rule Will Protect Sensitive Waters in the Michigan and the Great Lakes 
One of the most important aspects of the proposed rule is its protection of intermittent and ephemeral streams, which is important to Michigan anglers and all cold water fishing in Michigan. Protection of these sensitive headwaters is critical to safeguarding water quality, fisheries and wildlife habitat throughout the Great Lakes region. While some of these areas are already protected by Michigan’s state statute, there are areas even in Michigan still under the USACE administration that would still benefit from clarification. But more importantly, this proposed rule is bringing other Great Lakes states up to Michigan’s standards of protection and providing consistency of protection and certainty for the regulated community.
Absent Michigan’s assumption of the federal programs, much of our waters would be unprotected in Michigan. EPA estimates that 48 percent of Michigan’s streams have no other streams flowing into them, and that 36 percent do not flow year-round. Under varying interpretations of the most recent Supreme Court decision, these smaller water bodies are among those for which the extent of Clean Water Act protections has been questioned. EPA also says that 1,400,633 people in Michigan receive some of their drinking water from areas containing these smaller streams and that at least 163 facilities located on such streams currently have permits under the federal law regulating their pollution discharges. Also, Michigan’s Department of Environmental Quality estimated that 930,856 acres of wetlands in the state, along with 26,384 lakes and ponds, could be considered so-called “isolated” waters – water bodies that are particularly vulnerable to losing Clean Water Act safeguards if Michigan’s program is not maintained or funded. In view of all of these facts, perhaps it’s not surprising that Michigan joined over 30 states in asking the Supreme Court to uphold broad legal protections for small tributaries and their adjacent wetlands.
The Rule Should Be Expanded to Include Other Important and Sensitive Waters.
50% of Michigan’s threatened or endangered species need healthy, fully functional wetlands to complete their life cycle. But these areas are also critical habitat for waterfowl and other game species in Michigan. According to the U.S. Fish and Wildlife Service, in 2011 hunters spent $33.7 billion nationwide, while anglers spent $41.8 billion. Ranking 4th nationwide, Michigan’s 1,938,000 hunters and fishermen spend $4.8 billion annually and support 72,462 jobs.
Duck hunting in Michigan could be harmed by uncertainty within Clean Water Act protections. The Prairie Pothole Region (also known as “the Duck Factory”), an enormous geographic area west of Michigan, supports a globally significant population of breeding waterfowl, and it is at risk—these ducks born in the Prairie Potholes end up in Michigan. Unless these protections for wetlands duck habitat are restored, the duck population—and duck hunting—in Michigan will suffer.
MUCC strongly urge the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to include depressional wetlands in waters categorically protected under the Clean Water Act and then adopt the proposed rule. Michigan’s hunters and anglers contribute much and care very much about conservation of the fish and wildlife they pursue.

Leave a Comment