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Regional Activities & Issues
Review of Michigan DEQ's Section 404 Program: Report and Preliminary Conclusions
On January 22, 1998, the U.S. Environmental Protection Agency (EPA) initiated
an informal but comprehensive review of the State of Michigan's Clean
Water Act (CWA) section 404 permitting program and the program's administration
by the Michigan Department of Environmental Quality (MDEQ). The purpose
of EPA's section 404 program review was to make a determination whether
or not Michigan's section 404 program was still in compliance with the
Clean Water Act, the regulatory requirements of 40 C.F.R. part 233,
and the section 404(b)(1) Guidelines promulgated at 40 C.F.R. part 230.
EPA's program review had two principal components: an analysis of the
legal authorities Michigan possesses and relies upon in administering
the section 404 program, and an analysis of how MDEQ actually is implementing
the program. EPA now has completed its review and analysis and has published
in the
Federal Register (January 7, 2003) its preliminary conclusions as
to the adequacy of the State of Michigan's approved program. EPA has preliminarily
concluded that formal program withdrawal proceedings should not be initiated.
EPA has, however, found deficiencies in the legal authorities establishing
the approved section 404 program and in the program's administration.
EPA and the State of Michigan have agreed on a tentative schedule for
implementing the identified corrective actions. The full report is available
for viewing or printing (mi_404_program_review.pdf,
500Kb). 
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State Responses to the "SWANCC" Decision
The Supreme Court issued a ruling and opinion that has limited EPA's and the Corps' ability to regulate activities in wetlands. In its January 2001 ruling, the Supreme Court ruled that CWA jurisdiction does not include certain waters of the United States, i.e., isolated wetlands, where the sole basis for jurisdiction is the presence of migratory birds. The "SWANCC" case involved the development of a new landfill proposed by the Solid Waste Agency of Northern Cook County (SWANCC) at a site with ponds but no permanent surface connection to a navigable water or tributary. The 404 permit was denied by the Corps of Engineers. The Court continues to recognize statutory jurisdiction over navigable and tributary waters, as well as wetlands adjacent to such waters. The impacts of this decision are likely to be significant. Certain wetland types found in Region 5 may be especially vulnerable, including prairie potholes, bogs and ephemeral wetlands where the sole basis for jurisdiction is the presence of migratory birds. Region 5 States have taken steps to protect these isolated wetlands under State law and process.
- Wisconsin and Ohio have passed legislation requiring certification for water quality for any work in isolated wetlands;
- Indiana will require NPDES permits as an interim measure and will revise its water quality certification rulemaking to regulate work in isolated wetlands;
- Minnesota and Michigan already have State laws regulating isolated wetlands; and
- Illinois has begun a series of legislative study meetings; some county-level actions have been taken in the Chicago area.
Wetlands in Region 5 | Regional Activities & Issues List
Superior Middle School, Superior, Wisconsin
The selected site included 35 acres of high quality wetlands, containing four species of State-listed rare plants. With Branch leadership the project was redesigned, reducing wetland fill to 24.7 acres and shifting impacts away from the most sensitive parts of the site to address EPA's most significant concerns.
Wetlands in Region 5 | Regional Activities & Issues List
Hunter Lake Reservoir, Springfield, Illinois
In response to citizens concerns, Region 5 worked with other agencies to reach consensus on project mitigation which will include restoration/creation of 167 acres of wetlands, preservation/enhancement of 250 acres of forested wetland, preservation/enhancement of 4,700 acres of upland forest buffer, and restoration/creation of an additional 25 acres of wetland and streambank.
Wetlands in Region 5 | Regional Activities & Issues List
Marathon Pipeline, Ohio
In May 1998, Marathon-Ashland Petroleum, applied for a CWA Section 404 permit to construct a pipeline from Kenova WV to Columbus OH. The proposed pipeline would be 146 miles long, and would cross 319 streams (including 8 streams on the 303(d) list) and 56 wetlands. The pipeline would carry 80,000 barrels per day of gasoline, diesel fuel, jet fuel, and other petroleum products. From February 2000 until December 2001, Region 5 provided comments and recommendations to ORPL and the Corps on potential impacts and proposed mitigation for the stream and wetland crossings, ending with a letter of conditional approval based on reducing and mitigating impacts to wetlands and steams, with special emphasis on the 303(d)-listed streams.
Wetlands in Region 5 | Regional Activities & Issues List
Indiana Beach Inc., Monticello, Indiana
Region 5 settled an enforcement action against Indiana Beach Inc., an amusement park operator for Clean Water Act violations. EPA alleged that between September and November 1995, the company placed about 12,000 cubic yards of soil and 650 tons of rock into Lake Shafer, the Tippecanoe River and nearby wetlands in White County, IN without first obtaining the necessary permits. The settlement requires the company to obtain an after-the-fact permit from the U.S. Army Corps of Engineers and pay a $70,000 penalty.
Wetlands in Region 5 | Regional Activities & Issues List
Supplemental Environmental Projects (SEPs)
U.S. EPA continues to successfully leverage case conclusions and supplemental environmental projects (SEPs). As part of its settlement against Lunda Construction Company, Inc. , U.S. EPA approved a SEP allowing Lunda Construction Company to remove the Deerskin River dam in Vilas County, Wisconsin. The environmental benefit of the restoration of a free flowing river was qualitatively assessed as benefiting fish habitat and native plant and animal life in the watershed. The SEP was approved in consultation and support of the Wisconsin Department of Natural Resources (WDNR).
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Wetlands Enforcement & Compliance
in Region 5
Wetlands in Region 5 | Regional Activities & Issues List
Watersheds & Wetlands Topics | Other Local Water Topics