D. Michigan's wetlands regulatory approach

Since both consolidated cases concern Michigan properties, this Court may be interested in Michigan wetlands law.[11] Indeed, the interaction of Michigan and federal wetlands law is instructive in this case, since it suggests that the federal agency’s broad construction of its own jurisdiction promotes an imbalance in the federal-state relationship.

As part of the FWPCA Amendments of 1977, Congress enacted 33 U.S.C. § 1344(g) and (h), which allow a state to assume responsibility for issuing permits for the discharge of dredge or fill material. Michigan assumed authority for wetlands permitting in 1984, 40 C.F.R. § 233.70 (2005); Michigan is one of two states that have assumed such responsibility (the other is New Jersey).

Michigan’s Wetlands Protection Act was enacted in 1979. In 1995, the state Legislature repealed it and then substantially re-enacted it as part of the state’s Natural Resources and Environmental Protection Act. The wetlands protection section is currently codified at Mich. Comp. Laws §§ 324.30301-23. The CWA does not contain an explicit requirement that a state’s permitting program be as stringent as the CWA, but the EPA, which authorizes state programs, has specifically interpreted it in that manner in a federal regulation. 40 C.F.R. § 233.1(d) (2005).[12] According to the EPA, nothing prevents a state from enacting more stringent requirements than those found in the CWA. 40 C.F.R. § 233.1(c) (2005).

Michigan asserts jurisdiction over wetlands that are (1) contiguous to the Great Lakes, Lake St. Clair, an inland lake or pond, or a river or stream; (2) not contiguous to any waters above, but more than five acres in size in a county with more than 100,000 residents;[13] (3) not contiguous to any waters in (1), but more than five acres in size in a county with less than 100,000 residents where a wetlands inventory has been completed for that county;[14] and (4) not contiguous to any waters in (1) and less than five acres in size where a determination is made that preservation of that wetland is necessary to protect the state’s natural resources from destruction. Mich. Comp. Laws
§ 324.30301(p).

The MDEQ defines "contiguous" to mean either a seasonal or intermittent direct surface water connection with a lake, pond, river, or stream. Mich. Admin. Code r. 281.921(b) (2004). Also considered "contiguous" are any waters within 500 feet of a lake, pond, river, or stream, and any water within 1000 feet of a Great Lake or Lake St. Clair. Id. Wetlands that are separated from other wetlands by dikes, roads, berms, and the like, but are otherwise close to lakes, ponds, rivers, or streams, are also considered contiguous.

While Michigan has been delegated the right to generally administer the fill-permitting process, the EPA can withdraw that designation. Michigan is currently undergoing an EPA review in order to keep its program. Preliminary findings were published in 2003, 68 Fed. Reg. 772 (Jan. 7, 2003), based on a 100-page report issued by the EPA’s Region 5.[15] The EPA indicated that in light of the progress on the state’s wetlands inventory and of legal uncertainty regarding the proper scope of federal jurisdiction, Michigan’s jurisdictional requirements remain as stringent as the federal requirements, although the issue could be revisited later:

Michigan’s longstanding exclusion from regulation of all noncontiguous wetlands of any size that are located in a county with a population under 100,000 is a continuing concern for EPA. . . . If the wetland inventorying project is completed, EPA believes that our most significant concern with the scope of jurisdiction with Part 303 will be resolved. Furthermore, EPA expects that during the five years that these wetland inventories are being performed, the issues of the CWA’s jurisdiction over isolated wetlands will be resolved and that EPA will have future discussions with Michigan regarding how the resolution of the CWA’s jurisdiction impacts on Michigan’s administration of the section 404 program.

With respect to the 5-acre limitation imposed by Part 303’s definition of the term "wetland" at § 324.30301(d), in light of the uncertainties about federal CWA jurisdiction created by the SWANCC decision, and the absence of EPA or Corps final guidance on the effect of SWANCC, at this time EPA does not conclude that Part 303’s exclusion from regulatory jurisdiction of noncontiguous wetlands that are 5 acres or less renders Michigan’s law less stringent than the federal law. This issue, too, may be revisited by EPA and Michigan in the future.

Region 5 Review at 7-8.

The EPA’s preliminary finding about federal and Michigan jurisdiction is not dispositive, but is nevertheless worthy of mention in light of the Sixth Circuit’s decision in the instant Rapanos case. There, the Sixth Circuit held that the district court was not required to make a determination whether the wetlands at issue were at least five acres, since Michigan did not have the authority to "alter the CWA’s federal jurisdiction," and since there was "nothing in the CWA to suggest that by allowing Michigan to enforce portions of the CWA, the Corps was delegating the authority to the state to determine the limitations on CWA jurisdiction." Rapanos App. at A31.

But factoring in the EPA’s claim that Michigan jurisdiction is coextensive with federal jurisdiction, an interesting question arises. If the state standards must be at least as stringent as the federal standards, and if the state has the responsibility for issuing the fill permits, why should not the state standards control? There would appear to be no utility in referring to two separate sets of law when the federal agency already determined in 1984 that state law is as stringent. Presumably, if there were gaps in state law, the federal agencies would have refused to certify the state permitting program. This would seem to foreclose any argument that Michigan’s law is less stringent, particularly when the federal government is making the claim.

Still, it is the understanding of amicus curiae that the Rapanos petitioners will not be addressing these issues. Thus, while such a question might be interesting, it is not among the questions presented to this Court.

The second area that the EPA is reviewing is Michigan’s permit exemptions. The federal exemptions are found at 33 U.S.C. § 1344(f). Included in these exemptions are such activities as farming, silviculture (the care and cultivation of trees), some activities related to ranching, maintenance of dikes and levees, creation of stock ponds or irrigation ditches, maintenance of drainage ditches, and the creation of farm and forest roads. Id. Michigan’s largely parallel provision is Mich. Comp. Laws § 324.30305.

In the EPA’s review, numerous concerns were expressed about the Michigan exemptions. For example, the EPA noted that Michigan law did not limit its farming, ranching, or silviculture exemptions to those activities that were already established. Region 5 Review at 11. Another concern was that unlike federal law, Michigan law did not prohibit placing fill to convert the property from one exempted use to another – for example, from silviculture to farming. Id.

But in contrast to its jurisdictional review of Michigan’s program, the EPA demanded statutory and regulatory changes to meet perceived shortcomings in Michigan’s exemptions. For example, it demanded a statutory change to limit the agricultural exemption to already existing agricultural operations. Id. The EPA also demanded the promulgation of a state regulation delineating the geographical area covered by the agricultural exemption. Id. This regulation is supposed to mirror a federal appellate decision. The EPA also asserted that "it would be helpful to have the Attorney General’s Office issue an Attorney General’s opinion stating that the § 324.30305(2)(e) exemptions, as amended, as well as other exemptions established by Michigan law . . . shall be interpreted and applied by the MDEQ to be as stringent as the comparable federal exemptions." Id. at 11-12. The EPA made many other similar demands for statutory changes, regulatory changes, and Attorney General opinions.

This review process highlights federalism concerns present in the instant cases. In the EPA review, an unelected and largely unaccountable federal agency has placed a number of demands on Michigan’s elected public officials. Granted, Michigan could choose not to participate in the wetlands permitting program, but it may well be that Michigan is willingly subjecting itself to such oversight precisely because the Corps has interpreted its jurisdiction so broadly that significant portions of Michigan are within the Corps’ putative control. Michigan’s subjecting itself to federal agency oversight is ultimately the only way the state can retain some modicum of local control over the issuance of fill permits and hopefully respond more quickly to citizens’ requests.

If the Corps’ jurisdiction were properly limited to its 1974 definition of navigable waters and those wetlands adjacent to and inseparably bound up with such waters, Michigan might choose to let the federal government administer its (now more modest) CWA program. At the same time, the state could then experiment with its own wetlands regulation more fully than it currently does, rather than promulgating policies that are – and must be – as stringent as those of the federal government. Such an arrangement would enable Michigan to serve as a true laboratory of democracy and perhaps discover an optimal public policy. A proper ruling from this Court would give Michigan and its citizens that freedom.

[11] As mentioned earlier, the fact that Michigan laws and regulations are being discussed does not mean that amicus curiae believes that such laws and regulations reflect optimal public policy.

[12] This interpretation was implemented in 1988, after the Michigan program had already been approved. 53 Fed. Reg. 20776 (June 1, 1988).

[13] According to the 2000 Census, twenty of Michigan’s eighty-three counties have more than 100,000 residents. http://factfinder.census.gov/servlet/GCTTable?_bm=n&_lang=en&mt_name=DEC_2000_PL_U_GCTPL_ST2&format=ST-2&_box_head_nbr=GCT-PL&ds_name=DEC_2000_PL_U&geo_id=04000US26.

[14] There are twenty-two counties in Michigan that have not been inventoried: the twelve most western counties located in the upper peninsula, and ten counties in the northwest portion of the lower peninsula. http://www.michigan.gov/cgi/0,1607,7-158-12540_13817_22351-58858--,00.html. The MDEQ hopes to complete the inventory of the remaining counties by next year.

[15] This document is available at http://www.epa.gov/region5/water/wshednps/pdf/mi_404_program_review.pdf. This document will be cited as "Region 5 Review."