State Program Requirements; Approval of Program Revisions to Michigan's Clean Water Act Section 404 Program, 89930-89933 [2016-29888]
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89930
Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2013–0677; FRL–9956–01]
Receipt of Information Under the Toxic
Substances Control Act
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
EPA is announcing its receipt
of information submitted pursuant to a
rule, order, or consent agreement issued
under the Toxic Substances Control Act
(TSCA). As required by TSCA, this
document identifies each chemical
substance and/or mixture for which
information has been received; the uses
or intended uses of such chemical
substance and/or mixture; and describes
the nature of the information received.
Each chemical substance and/or mixture
related to this announcement is
identified in Unit I. under
SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: For
technical information contact: Hannah
Braun, Chemical Control Division
(7405M), Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; telephone
number: (202) 564–5614; email address:
braun.hannah@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Chemical Substances and/or Mixtures
Information received about the
following chemical substances and/or
mixtures is identified in Unit IV.:
A. Ethanedioic acid (CASRN 144–62–7).
B. Octamethylcyclotetrasiloxane (D4)
(CASRN 556–67–2).
II. Authority
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Section 4(d) of TSCA (15 U.S.C.
2603(d)) requires EPA to publish a
notice in the Federal Register reporting
the receipt of information submitted
pursuant to a rule, order, or consent
agreement promulgated under TSCA
section 4 (15 U.S.C. 2603).
III. Docket Information
A docket, identified by the docket
identification (ID) number EPA–HQ–
OPPT–2013–0677, has been established
for this Federal Register document,
which announces the receipt of the
information. Upon EPA’s completion of
its quality assurance review, the
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information received will be added to
the docket identified in Unit IV., which
represents the docket used for the TSCA
section 4 rule, order, and/or consent
agreement. In addition, once completed,
EPA reviews of the information received
will be added to the same docket. Use
the docket ID number provided in Unit
IV. to access the information received
and any available EPA review.
EPA’s dockets are available
electronically at https://
www.regulations.gov or in person at the
Office of Pollution Prevention and
Toxics Docket (OPPT Docket),
Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the OPPT
Docket is (202) 566–0280. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
IV. Information Received
As specified by TSCA section 4(d),
this unit identifies the information
received by EPA.
A. Ethanedioic Acid (CASRN 144–62–7)
1. Chemical Uses: Ethanedioic acid is
used as a rust remover; in antirust metal
cleaners and coatings; as a flameproofing and cross-linking agent in
cellulose fabrics; as a reducing agent in
mordent wool dying; as an acid dye
stabilizing agent in nylon; as a scouring
agent for cotton printing; and as a dye
stripper for wool. Ethanedioic acid is
also used for degumming silk; for the
separation and recovery of rare earth
elements from ore; for bleaching leather
and masonry; for cleaning aluminum
and wood decks; and as a synthetic
intermediate for pharmaceuticals.
2. Applicable Rule, Order, or Consent
Agreement: Chemical testing
requirements for second group of high
production volume chemicals (HPV2),
40 CFR 799.5087.
3. Applicable docket ID number: The
information received will be added to
docket ID number EPA–HQ–OPPT–
2007–0531.
4. Information Received: EPA
received the following information:
Exemption Request.
B. Octamethylcyclotetrasiloxane (D4)
(CASRN 556–67–2)
1. Chemical Uses: D4 is used as an
intermediate for silicone copolymers
and other chemicals. D4 is also used in
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industrial processing applications as a
solvent (which becomes part of a
product formulation or mixture),
finishing agent, and an adhesive and
sealant chemical. It is also used for both
consumer and commercial purposes in
paints and coatings, and plastic and
rubber products and has consumer uses
in polishes, sanitation, soaps,
detergents, adhesives, and sealants.
2. Applicable Rule, Order, or Consent
Agreement: Enforceable Consent
Agreement for Environmental Testing
for Octamethylcyclotetrasiloxane (D4)
(CASRN 556–67–2).
3. Applicable docket ID number: The
information received will be added to
docket ID number EPA–HQ–OPPT–
2012–0209.
4. Information Received: EPA
received the following information:
Benthic sampling events update.
Authority: 15 U.S.C. 2601 et seq.
Dated: December 6, 2016.
Lynn Vendinello,
Acting Director, Chemical Control Division,
Office of Pollution Prevention and Toxics.
[FR Doc. 2016–29889 Filed 12–12–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OW–2013–0710; FRL–9956–48–
Region 5]
State Program Requirements;
Approval of Program Revisions to
Michigan’s Clean Water Act Section
404 Program
Environmental Protection
Agency (EPA).
ACTION: Notice of decision.
AGENCY:
In a July 5, 2013, letter, the
Michigan Department of Environmental
Quality (MDEQ) requested that the
Environmental Protection Agency (EPA)
approve revisions to the State’s Clean
Water Act (CWA) Section 404
permitting program that resulted from
the enactment of Michigan Public Act
98 (PA 98). CWA Section 404 requires
permits for dredge and fill activities in
wetlands subject to federal jurisdiction.
A state CWA Section 404 program must
be conducted in accordance with the
requirements of CWA Section 404 and
its implementing regulations. Any
revisions to state CWA programs must
be approved by EPA before the revision
may be implemented. Substantial
modifications to a state’s CWA Section
404 program become effective upon EPA
approval and publication of EPA’s
decision in the Federal Register.
EPA has reviewed the proposed
revisions to Michigan’s Section 404
SUMMARY:
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Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Notices
program within the sections of the
Michigan statute modified by PA 98 and
has found a majority of revisions within
PA 98 sections to be consistent with the
CWA and approvable. Other revisions
are inconsistent with the CWA and thus
not approvable.
DATES: Pursuant to 40 CFR 233.16(d)(4),
the following revisions to Michigan’s
CWA Section 404 program are approved
and in effect upon publication of this
notice.
FOR FURTHER INFORMATION CONTACT:
Melanie Burdick, Watersheds and
Wetlands Branch (WW–16j), U.S.
Environmental Protection Agency,
Region 5, 77 W. Jackson Blvd., Chicago,
Illinois 60604; call toll free: 800–621–
8431, weekdays, 8:30 a.m. to 4:30 p.m.
Central time; fax number: 312–697–
2598; email address: burdick.melanie@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action applies to the MDEQ’s
CWA Section 404 program. Approval of
these provisions affects those seeking
CWA Section 404 dredge and fill
permits from the State of Michigan.
B. How can I get copies of this decision
and other related information?
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Docket
EPA has established a docket for this
action under Docket ID No. EPA–HQ–
OW–2013–0710; [FRL 9956–48–
REGION 5]. All publicly available
materials related to this action are
available either electronically through
www.regulations.gov or in hard copy at
the Water Docket in the EPA Docket
Center, (EPA/DC) EPA West, Room
3334, 1301 Constitution Ave. NW.,
Washington, DC. The EPA Docket
Center Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744.
You may access this Federal Register
document electronically from the
Government Printing Office under the
‘‘Federal Register’’ listings at FDSys
https://www.gpo.gov/fdsys/. Insert: EPA–
HQ–OW–2013–0710; FRL 9956–48–
Region 5 in the search field.
II. Background and Scope of MDEQ
Program Revisions
Under Section 404 of the CWA,
permits are required for activities
involving discharges of dredged or fill
material to waters of the United States,
including wetlands, lakes and streams.
Michigan assumed CWA Section 404
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permitting authority for its inland
waters and wetlands in 1984. A stateassumed CWA Section 404 program
must be conducted in accordance with
the requirements of the CWA and its
implementing regulations at 40 CFR part
233 (33 U.S.C. 1344(h), 40 CFR 233.1).
In February 1997, EPA received a
request from the Michigan
Environmental Council to either ensure
that the administration of Michigan’s
Section 404 program was consistent
with the CWA, or withdraw Michigan’s
authority to administer the Section 404
program. In response to the request,
EPA initiated an informal review of
Michigan’s administration of the
Section 404 program. This Program
Review was completed in April 2008.
The 2008 Program Review identified
several deficiencies in Michigan’s
Section 404 program. In response to the
2008 Program Review findings, MDEQ
proposed a list of corrective actions to
address those deficiencies. These
corrective actions included making
changes to the State’s statutes governing
state administration of the Section 404
program. On July 2, 2013, Michigan
enacted PA 98 which contained
significant amendments to Parts 301
(Inland Lakes and Streams) and 303
(Wetlands Protection) of Michigan’s
Natural Resources and Environmental
Protection Act. The statutory
amendments included changes intended
to address the legislative corrective
actions identified in EPA’s 2008
Program Review; changes to the
definition of contiguous wetlands
regulated by Michigan’s Section 404
program; the addition of new
exemptions from permitting; and
changes to the requirements for
mitigating the effects of filling wetlands
and other waters of the United States.
The program revisions resulting from
enactment of PA 98 are described EPA’s
Supporting document for EPA decision
to approve/deny Michigan’s section 404
program statute changes in Public Act
98 which can be found in the docket for
this action which is available
electronically through
www.regulations.gov, Docket ID No.
EPA–HQ–OW–2013–0710.
On July 5, 2013, the MDEQ submitted
PA 98 to EPA as a proposed revision to
its CWA Section 404 program and
requested EPA approval of the revisions.
Per the regulations at 40 CFR
233.16(d)(3), EPA held a public hearing
on December 11, 2013, sought public
comment, and consulted with the Corps
of Engineers and the U.S. Fish and
Wildlife Service on the program
revisions contained in PA 98. (Note: The
U.S. National Marine Fisheries Service
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89931
did not respond to EPA’s request to
consult.) The EPA also consulted with
interested tribes per Executive Order
13175 and EPA policy.
In a letter to the MDEQ dated
November 24, 2014, EPA requested
clarification on the State’s interpretation
of a number of provisions within PA 98.
The Michigan Department of the
Attorney General responded to this
request for clarification in a letter dated
May 27, 2015. A copy of these letters
can be found in the docket at:
www.regulations.gov, Docket ID No.
EPA–HQ–OW–2013–0710.
EPA has reviewed the proposed
revisions within the sections of the
Michigan statutes modified by PA 98,
and has found a majority of the
revisions to be fully consistent with the
CWA and are approved. Other revisions
are inconsistent and thus not approved.
III. Summary of Public Comments
The EPA solicited and received public
comment on the proposed revisions to
Michigan’s Section 404 program
resulting from PA 98 via testimony at a
December 11, 2013, public hearing,
electronically through
www.regulations.gov, and by written
submissions to the docket for this
action. Through these efforts, EPA
received a total of 286 comments. Of the
134 unique comments received: 82
expressed support of EPA approval of
the proposed program revisions
resulting from PA 98, 49 opposed EPA
approval, and the remaining
commenters did not express support for
approval or disapproval of the revisions.
The majority of commenters simply
indicated whether they supported or did
not support EPA approval of the
program revisions in PA 98. While some
commenters provided detailed rationale
for their viewpoint, many did not. Most
comments that supported approval of
the program revisions in PA 98 also
identified support for economic
development in Michigan. Comments
supporting approval of the revisions
were from a diverse group of interests
including agriculture, oil and gas, drain
commissions, land development, home
building, and manufacturing. Those
commenters who expressed opposition
to approval of the program revisions
highlighted concern for environmental
protection of rivers, lakes, and wetlands.
These commenters felt that PA 98 did
not adequately address the
inconsistencies between Michigan’s
program and the CWA identified in
EPA’s 2008 Program Review and that
additional provisions in PA 98 were
inconsistent with the CWA
requirements. Regardless of positions
taken on EPA’s approval of the
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Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Notices
proposed program revisions, most
commenters supported Michigan’s
retention of the CWA Section 404
permitting program. Consistent with
Executive Order 13175 and EPA’s policy
on Consultation and Coordination with
Indian Tribes (https://www.epa.gov/
tribal/consultation/consult-policy.htm),
EPA held government-to-government
consultation teleconferences with four
interested Michigan tribal organizations
on January 23, 2014. EPA received
written comments from two tribes. All
public comments received, EPA’s
Summary of Public Comments and
Responsiveness Summary and a
summary of EPA’s consultation with
tribes can be found in the docket at:
www.regulations.gov, Docket ID No.
EPA–HQ–OW–2013–0710; [FRL 9956–
48–REGION 5].
IV. Notice of Decision
Pursuant to 40 CFR 233.16(d)(4), EPA
has reviewed the proposed revisions to
Michigan’s Section 404 program
resulting from enactment of PA 98 for
consistency with the CWA and its
implementing regulations. Where EPA
has determined that the proposed
revisions meet the minimum
requirements of the CWA and
implementing regulations, EPA has
approved the revisions which are in
effect upon publication of this notice.
EPA has disapproved those revisions
that do not meet these minimum
requirements.
EPA’s review of the proposed
revisions to Michigan’s Section 404
program resulting from PA 98 does not
constitute a comprehensive review of
the State’s program for conformance
with the CWA, but rather addresses only
proposed changes to Michigan’s
program related to PA 98 ensuring their
consistency with CWA Section 404 and
its implementing federal regulations.
Information about the proposed
revisions to Michigan’s Section 404
program pursuant to PA 98, the public
hearing, EPA’s response to comments
and other supporting documents are
available at: www.regulations.gov/
(insert: EPA–HQ–OW–2013–0710 in the
search field).
I hereby provide public notice that
EPA has taken final action on the
proposed revisions to MDEQ’s CWA
Section 404 program as outlined in
Tables 1–2 below.
TABLE 1—PROVISIONS OF PA 98 CONSISTENT WITH REQUIREMENTS OF CWA SECTION 404
PA 98 Provision—with descriptor
Decision
Sec. 1307 Permit Processing Timeframes ........................................................................................................................
Sec. 30101a. Statement of Purpose .................................................................................................................................
Sec. 30103(1)(d)(i) and (ii) Exemption for Maintenance of Agricultural Drains ................................................................
Sec. 30103(1)(e) Modification of Waste Treatment Exemption ........................................................................................
Sec. 30103(1)(f) Modification of Minor Drainage Exemption ............................................................................................
Sec. 30103(1)(g)(i)–(vi) and (viii) Modification of Drain Maintenance Exemption ............................................................
Sec. 30103(3) Definition of Agricultural Drain Added .......................................................................................................
Sec. 30104 Changes in Michigan’s Fee Requirements ....................................................................................................
Sec. 30105(3) and (5) Modification of Public Notice Provisions ......................................................................................
Sec. 30105(8)(b) Modification of Maintenance and Repair of Existing Pipelines Provision .............................................
Sec. 30105(9) Modification of Section Authorizing Conditions for a Minor Project Category or General Permit ............
Sec. 30105(11) General Permit for Drain Activities ..........................................................................................................
Sec. 30305(2)(d) Modification of Exemption for Grazing ..................................................................................................
Sec. 30305(2)(e) Modification of Exemption for Farming, Horticulture, Agriculture, Silviculture, Lumbering and Ranching.
Sec. 30305(2)(h) Modification of Agricultural Drain Maintenance Exemption ..................................................................
Sec. 30305(2)(i) Exemption for Drain Maintenance ..........................................................................................................
30305(2)(j) Modification of Road Maintenance Exemption ......................................................................................
30305(2)(j) Deletion of Farm Production and Harvesting Exemption ......................................................................
30305(2)(k) Modification of Maintenance of Public Streets Exemption ...................................................................
30305(2)(l) Modification of Utility Line Maintenance Exemption ..............................................................................
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
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Sec.
Sec.
Sec.
Sec.
30305(2)(o) Deletion of Construction of Tailings Basin Exemption .........................................................................
30305(4)(a) Modification of Wetlands Incidentally Created as Part of Sand, Gravel or Mineral Mining Exemption
30305(8) Definition of Agricultural Drain ...................................................................................................................
30306(1)–(6) Modification of Application Requirements and Fees ..........................................................................
30306(7) Modification of Conditional Permits Under Emergency Conditions ..........................................................
30306b Modification of Application Fees and Other Requirements .........................................................................
30311(5)–(6) Consideration of Feasible and Prudent Alternatives ..........................................................................
30311a Deletion of Former Sections 30311a(2)–(5) on Consideration of Feasible and Prudent Alternatives ........
30311d(5) Compensatory Mitigation Ratios .............................................................................................................
30311d(6) Conservation Mitigation Credits for Easements for Impacted Agricultural Sites ....................................
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
Sec.
30311d(7) Stewardship Fund ....................................................................................................................................
30311d(8)(a)–(e) Compensatory Mitigation Rulemaking ..........................................................................................
30311d(9)(a),(b), and (c) Rulemaking to Encourage Banks ....................................................................................
30311d(10) Mitigation Bank Funding Program .........................................................................................................
30312(5) General Permit Authority ...........................................................................................................................
30312(6) General Permit for Blueberry Farming ......................................................................................................
30312(7) General Permit for Blueberry Farming ......................................................................................................
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E:\FR\FM\13DEN1.SGM
13DEN1
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved: EPA recommends the language
is clarified.
Approved.
Approved.
Approved.
Approved: with the condition that the 2011 MOA
will be revised.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved: the provision
for a ‘‘stewardship
fund.’’
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
Approved.
89933
Federal Register / Vol. 81, No. 239 / Tuesday, December 13, 2016 / Notices
TABLE 1—PROVISIONS OF PA 98 CONSISTENT WITH REQUIREMENTS OF CWA SECTION 404—Continued
PA 98 Provision—with descriptor
Decision
Sec. 30321(7) Defines Drains, Ditches, etc. as Not being Wetlands ...............................................................................
Approved: the second
sentence ‘‘A temporary
obstruction of drainage
. . . identified as a
wetland pursuant to
section 30301(2).’’
Approved.
Sec. 30328 State Program Limited to Navigable Waters and Waters of the U.S. ...........................................................
TABLE 2—PROVISIONS OF PA 98 INCONSISTENT WITH REQUIREMENTS OF CWA SECTION 404
PA 98 Provision—with descriptor
Decision
Sec. 30103(1)(g)(vii) Modification of Drain Maintenance Exemption ...............................................................................
Sec. 30103(1)(m) Exemption for Controlled Livestock Access ........................................................................................
Sec. 30305(2)(m) Modification of Utility Line Installation Exemption ...............................................................................
Sec. 30305(2)(o) Exemption for Placement of Biological Residues in Wetlands .............................................................
Sec. 30305(4)(b) Modification of Exemption for Wetlands Created as a result of Construction or Operation of a
Waste Treatment Pond or Storm Water Facility.
Sec. 30305(4)(d) Modification of Exemption for Wetlands Created as a Result of Construction of Drains to Remove
Excess Soil Moisture from Upland Areas Primarily Used for Agriculture.
Sec. 30305(4)(e) Exemption for Wetlands Formed in Roadside Ditches .........................................................................
Sec. 30305(4)(f) Exemption for Wetlands Created as a Result of Agricultural Soil and Water Conservation Practices
Sec. 30305(5) Contiguous Waters as a Result of Excavation .........................................................................................
Sec. 30311(7) Consideration of Feasible and Prudent Alternatives .................................................................................
Sec. 30311d(6) Conservation Mitigation Credits for Easements for Impacted Agricultural Sites ....................................
Sec. 30321(5) Definition of ‘‘Not Contiguous’’ ..................................................................................................................
Sec. 30321(6) Use of Drains to Establish Jurisdiction .....................................................................................................
Sec. 30321(7) Defines Drains, Ditches, etc. as Not Being Wetlands ..............................................................................
pmangrum on DSK3GDR082PROD with NOTICES
Authority: This action is taken under the
authority of Section 404 of the Clean Water
Act as amended, 42 U.S.C. 1344.
of receipt and opportunity to comment
on these applications.
DATES: Comments must be received on
Dated: December 2, 2016.
or before January 12, 2017.
Robert A. Kaplan,
ADDRESSES: Submit your comments,
Acting Regional Administrator.
identified by the Docket Identification
(ID) Number and the File Symbol of
[FR Doc. 2016–29888 Filed 12–12–16; 8:45 am]
interest as shown in the body of this
BILLING CODE 6560–50–P
document, by one of the following
methods:
• Federal eRulemaking Portal: https://
ENVIRONMENTAL PROTECTION
www.regulations.gov. Follow the online
AGENCY
instructions for submitting comments.
[EPA–HQ–OPP–2015–0021; FRL–9955–75]
Do not submit electronically any
information you consider to be
Pesticide Product Registrations;
Receipt of Applications for New Active Confidential Business Information (CBI)
or other information whose disclosure is
Ingredients
restricted by statute.
• Mail: OPP Docket, Environmental
AGENCY: Environmental Protection
Protection Agency Docket Center (EPA/
Agency (EPA).
DC), (28221T), 1200 Pennsylvania Ave.
ACTION: Notice.
NW., Washington, DC 20460–0001.
• Hand Delivery: To make special
SUMMARY: EPA has received applications
to register pesticide products containing arrangements for hand delivery or
delivery of boxed information, please
active ingredients not included in any
follow the instructions at https://
currently registered pesticide products.
www.epa.gov/dockets/contacts.html.
Pursuant to the Federal Insecticide,
Additional instructions on commenting
Fungicide, and Rodenticide Act
(FIFRA), EPA is hereby providing notice or visiting the docket, along with more
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Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved.
Disapproved the statement: ‘‘protection and
restoration of the impacted site.’’
Disapproved.
Disapproved.
Disapproved: the first
sentence ‘‘A drainage
structure such as a culvert, ditch, or channel,
in and of itself, is not a
wetland.’’
information about dockets generally, is
available at https://www.epa.gov/
dockets.
FOR FURTHER INFORMATION CONTACT:
Robert McNally, Biopesticides and
Pollution Prevention Division (7511P),
main telephone number: (703) 305–
7090, email address: BPPDFRNotices@
epa.gov; or Michael Goodis, Registration
Division (7505P), main telephone
number: (703) 305–7090, email address:
RDFRNotices@epa.gov. The mailing
address for each contact person is:
Office of Pesticide Programs,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington,
DC 20460–0001. As part of the mailing
address, include the contact person’s
name, division, and mail code. The
division to contact is listed at the end
of each application summary.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
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]]>Agencies
[Federal Register Volume 81, Number 239 (Tuesday, December 13, 2016)]
[Notices]
[Pages 89930-89933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29888]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2013-0710; FRL-9956-48-Region 5]
State Program Requirements; Approval of Program Revisions to
Michigan's Clean Water Act Section 404 Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: In a July 5, 2013, letter, the Michigan Department of
Environmental Quality (MDEQ) requested that the Environmental
Protection Agency (EPA) approve revisions to the State's Clean Water
Act (CWA) Section 404 permitting program that resulted from the
enactment of Michigan Public Act 98 (PA 98). CWA Section 404 requires
permits for dredge and fill activities in wetlands subject to federal
jurisdiction. A state CWA Section 404 program must be conducted in
accordance with the requirements of CWA Section 404 and its
implementing regulations. Any revisions to state CWA programs must be
approved by EPA before the revision may be implemented. Substantial
modifications to a state's CWA Section 404 program become effective
upon EPA approval and publication of EPA's decision in the Federal
Register.
EPA has reviewed the proposed revisions to Michigan's Section 404
[[Page 89931]]
program within the sections of the Michigan statute modified by PA 98
and has found a majority of revisions within PA 98 sections to be
consistent with the CWA and approvable. Other revisions are
inconsistent with the CWA and thus not approvable.
DATES: Pursuant to 40 CFR 233.16(d)(4), the following revisions to
Michigan's CWA Section 404 program are approved and in effect upon
publication of this notice.
FOR FURTHER INFORMATION CONTACT: Melanie Burdick, Watersheds and
Wetlands Branch (WW-16j), U.S. Environmental Protection Agency, Region
5, 77 W. Jackson Blvd., Chicago, Illinois 60604; call toll free: 800-
621-8431, weekdays, 8:30 a.m. to 4:30 p.m. Central time; fax number:
312-697-2598; email address: burdick.melanie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action applies to the MDEQ's CWA Section 404 program. Approval
of these provisions affects those seeking CWA Section 404 dredge and
fill permits from the State of Michigan.
B. How can I get copies of this decision and other related information?
Docket
EPA has established a docket for this action under Docket ID No.
EPA-HQ-OW-2013-0710; [FRL 9956-48-REGION 5]. All publicly available
materials related to this action are available either electronically
through www.regulations.gov or in hard copy at the Water Docket in the
EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave.
NW., Washington, DC. The EPA Docket Center Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744. You may access this Federal Register document electronically
from the Government Printing Office under the ``Federal Register''
listings at FDSys https://www.gpo.gov/fdsys/. Insert: EPA-HQ-OW-2013-
0710; FRL 9956-48-Region 5 in the search field.
II. Background and Scope of MDEQ Program Revisions
Under Section 404 of the CWA, permits are required for activities
involving discharges of dredged or fill material to waters of the
United States, including wetlands, lakes and streams. Michigan assumed
CWA Section 404 permitting authority for its inland waters and wetlands
in 1984. A state-assumed CWA Section 404 program must be conducted in
accordance with the requirements of the CWA and its implementing
regulations at 40 CFR part 233 (33 U.S.C. 1344(h), 40 CFR 233.1). In
February 1997, EPA received a request from the Michigan Environmental
Council to either ensure that the administration of Michigan's Section
404 program was consistent with the CWA, or withdraw Michigan's
authority to administer the Section 404 program. In response to the
request, EPA initiated an informal review of Michigan's administration
of the Section 404 program. This Program Review was completed in April
2008. The 2008 Program Review identified several deficiencies in
Michigan's Section 404 program. In response to the 2008 Program Review
findings, MDEQ proposed a list of corrective actions to address those
deficiencies. These corrective actions included making changes to the
State's statutes governing state administration of the Section 404
program. On July 2, 2013, Michigan enacted PA 98 which contained
significant amendments to Parts 301 (Inland Lakes and Streams) and 303
(Wetlands Protection) of Michigan's Natural Resources and Environmental
Protection Act. The statutory amendments included changes intended to
address the legislative corrective actions identified in EPA's 2008
Program Review; changes to the definition of contiguous wetlands
regulated by Michigan's Section 404 program; the addition of new
exemptions from permitting; and changes to the requirements for
mitigating the effects of filling wetlands and other waters of the
United States. The program revisions resulting from enactment of PA 98
are described EPA's Supporting document for EPA decision to approve/
deny Michigan's section 404 program statute changes in Public Act 98
which can be found in the docket for this action which is available
electronically through www.regulations.gov, Docket ID No. EPA-HQ-OW-
2013-0710.
On July 5, 2013, the MDEQ submitted PA 98 to EPA as a proposed
revision to its CWA Section 404 program and requested EPA approval of
the revisions. Per the regulations at 40 CFR 233.16(d)(3), EPA held a
public hearing on December 11, 2013, sought public comment, and
consulted with the Corps of Engineers and the U.S. Fish and Wildlife
Service on the program revisions contained in PA 98. (Note: The U.S.
National Marine Fisheries Service did not respond to EPA's request to
consult.) The EPA also consulted with interested tribes per Executive
Order 13175 and EPA policy.
In a letter to the MDEQ dated November 24, 2014, EPA requested
clarification on the State's interpretation of a number of provisions
within PA 98. The Michigan Department of the Attorney General responded
to this request for clarification in a letter dated May 27, 2015. A
copy of these letters can be found in the docket at:
www.regulations.gov, Docket ID No. EPA-HQ-OW-2013-0710.
EPA has reviewed the proposed revisions within the sections of the
Michigan statutes modified by PA 98, and has found a majority of the
revisions to be fully consistent with the CWA and are approved. Other
revisions are inconsistent and thus not approved.
III. Summary of Public Comments
The EPA solicited and received public comment on the proposed
revisions to Michigan's Section 404 program resulting from PA 98 via
testimony at a December 11, 2013, public hearing, electronically
through www.regulations.gov, and by written submissions to the docket
for this action. Through these efforts, EPA received a total of 286
comments. Of the 134 unique comments received: 82 expressed support of
EPA approval of the proposed program revisions resulting from PA 98, 49
opposed EPA approval, and the remaining commenters did not express
support for approval or disapproval of the revisions. The majority of
commenters simply indicated whether they supported or did not support
EPA approval of the program revisions in PA 98. While some commenters
provided detailed rationale for their viewpoint, many did not. Most
comments that supported approval of the program revisions in PA 98 also
identified support for economic development in Michigan. Comments
supporting approval of the revisions were from a diverse group of
interests including agriculture, oil and gas, drain commissions, land
development, home building, and manufacturing. Those commenters who
expressed opposition to approval of the program revisions highlighted
concern for environmental protection of rivers, lakes, and wetlands.
These commenters felt that PA 98 did not adequately address the
inconsistencies between Michigan's program and the CWA identified in
EPA's 2008 Program Review and that additional provisions in PA 98 were
inconsistent with the CWA requirements. Regardless of positions taken
on EPA's approval of the
[[Page 89932]]
proposed program revisions, most commenters supported Michigan's
retention of the CWA Section 404 permitting program. Consistent with
Executive Order 13175 and EPA's policy on Consultation and Coordination
with Indian Tribes (https://www.epa.gov/tribal/consultation/consult-policy.htm), EPA held government-to-government consultation
teleconferences with four interested Michigan tribal organizations on
January 23, 2014. EPA received written comments from two tribes. All
public comments received, EPA's Summary of Public Comments and
Responsiveness Summary and a summary of EPA's consultation with tribes
can be found in the docket at: www.regulations.gov, Docket ID No. EPA-
HQ-OW-2013-0710; [FRL 9956-48-REGION 5].
IV. Notice of Decision
Pursuant to 40 CFR 233.16(d)(4), EPA has reviewed the proposed
revisions to Michigan's Section 404 program resulting from enactment of
PA 98 for consistency with the CWA and its implementing regulations.
Where EPA has determined that the proposed revisions meet the minimum
requirements of the CWA and implementing regulations, EPA has approved
the revisions which are in effect upon publication of this notice. EPA
has disapproved those revisions that do not meet these minimum
requirements.
EPA's review of the proposed revisions to Michigan's Section 404
program resulting from PA 98 does not constitute a comprehensive review
of the State's program for conformance with the CWA, but rather
addresses only proposed changes to Michigan's program related to PA 98
ensuring their consistency with CWA Section 404 and its implementing
federal regulations. Information about the proposed revisions to
Michigan's Section 404 program pursuant to PA 98, the public hearing,
EPA's response to comments and other supporting documents are available
at: www.regulations.gov/ (insert: EPA-HQ-OW-2013-0710 in the search
field).
I hereby provide public notice that EPA has taken final action on
the proposed revisions to MDEQ's CWA Section 404 program as outlined in
Tables 1-2 below.
Table 1--Provisions of PA 98 Consistent With Requirements of CWA Section
404
------------------------------------------------------------------------
PA 98 Provision--with descriptor Decision
------------------------------------------------------------------------
Sec. 1307 Permit Processing Timeframes.......... Approved.
Sec. 30101a. Statement of Purpose............... Approved.
Sec. 30103(1)(d)(i) and (ii) Exemption for Approved.
Maintenance of Agricultural Drains.
Sec. 30103(1)(e) Modification of Waste Treatment Approved.
Exemption.
Sec. 30103(1)(f) Modification of Minor Drainage Approved.
Exemption.
Sec. 30103(1)(g)(i)-(vi) and (viii) Modification Approved.
of Drain Maintenance Exemption.
Sec. 30103(3) Definition of Agricultural Drain Approved.
Added.
Sec. 30104 Changes in Michigan's Fee Approved.
Requirements.
Sec. 30105(3) and (5) Modification of Public Approved.
Notice Provisions.
Sec. 30105(8)(b) Modification of Maintenance and Approved.
Repair of Existing Pipelines Provision.
Sec. 30105(9) Modification of Section Approved.
Authorizing Conditions for a Minor Project
Category or General Permit.
Sec. 30105(11) General Permit for Drain Approved.
Activities.
Sec. 30305(2)(d) Modification of Exemption for Approved.
Grazing.
Sec. 30305(2)(e) Modification of Exemption for Approved.
Farming, Horticulture, Agriculture,
Silviculture, Lumbering and Ranching.
Sec. 30305(2)(h) Modification of Agricultural Approved.
Drain Maintenance Exemption.
Sec. 30305(2)(i) Exemption for Drain Maintenance Approved: EPA
recommends the
language is
clarified.
Sec. 30305(2)(j) Modification of Road Approved.
Maintenance Exemption.
Sec. 30305(2)(j) Deletion of Farm Production and Approved.
Harvesting Exemption.
Sec. 30305(2)(k) Modification of Maintenance of Approved.
Public Streets Exemption.
Sec. 30305(2)(l) Modification of Utility Line Approved: with the
Maintenance Exemption. condition that the
2011 MOA will be
revised.
Sec. 30305(2)(o) Deletion of Construction of Approved.
Tailings Basin Exemption.
Sec. 30305(4)(a) Modification of Wetlands Approved.
Incidentally Created as Part of Sand, Gravel or
Mineral Mining Exemption.
Sec. 30305(8) Definition of Agricultural Drain.. Approved.
Sec. 30306(1)-(6) Modification of Application Approved.
Requirements and Fees.
Sec. 30306(7) Modification of Conditional Approved.
Permits Under Emergency Conditions.
Sec. 30306b Modification of Application Fees and Approved.
Other Requirements.
Sec. 30311(5)-(6) Consideration of Feasible and Approved.
Prudent Alternatives.
Sec. 30311a Deletion of Former Sections Approved.
30311a(2)-(5) on Consideration of Feasible and
Prudent Alternatives.
Sec. 30311d(5) Compensatory Mitigation Ratios... Approved.
Sec. 30311d(6) Conservation Mitigation Credits Approved: the
for Easements for Impacted Agricultural Sites. provision for a
``stewardship fund.''
Sec. 30311d(7) Stewardship Fund................. Approved.
Sec. 30311d(8)(a)-(e) Compensatory Mitigation Approved.
Rulemaking.
Sec. 30311d(9)(a),(b), and (c) Rulemaking to Approved.
Encourage Banks.
Sec. 30311d(10) Mitigation Bank Funding Program. Approved.
Sec. 30312(5) General Permit Authority.......... Approved.
Sec. 30312(6) General Permit for Blueberry Approved.
Farming.
Sec. 30312(7) General Permit for Blueberry Approved.
Farming.
[[Page 89933]]
Sec. 30321(7) Defines Drains, Ditches, etc. as Approved: the second
Not being Wetlands. sentence ``A
temporary obstruction
of drainage . . .
identified as a
wetland pursuant to
section 30301(2).''
Sec. 30328 State Program Limited to Navigable Approved.
Waters and Waters of the U.S..
------------------------------------------------------------------------
Table 2--Provisions of PA 98 Inconsistent With Requirements of CWA
Section 404
------------------------------------------------------------------------
PA 98 Provision--with descriptor Decision
------------------------------------------------------------------------
Sec. 30103(1)(g)(vii) Modification of Drain Disapproved.
Maintenance Exemption.
Sec. 30103(1)(m) Exemption for Controlled Disapproved.
Livestock Access.
Sec. 30305(2)(m) Modification of Utility Line Disapproved.
Installation Exemption.
Sec. 30305(2)(o) Exemption for Placement of Disapproved.
Biological Residues in Wetlands.
Sec. 30305(4)(b) Modification of Exemption for Disapproved.
Wetlands Created as a result of Construction or
Operation of a Waste Treatment Pond or Storm
Water Facility.
Sec. 30305(4)(d) Modification of Exemption for Disapproved.
Wetlands Created as a Result of Construction of
Drains to Remove Excess Soil Moisture from
Upland Areas Primarily Used for Agriculture.
Sec. 30305(4)(e) Exemption for Wetlands Formed Disapproved.
in Roadside Ditches.
Sec. 30305(4)(f) Exemption for Wetlands Created Disapproved.
as a Result of Agricultural Soil and Water
Conservation Practices.
Sec. 30305(5) Contiguous Waters as a Result of Disapproved.
Excavation.
Sec. 30311(7) Consideration of Feasible and Disapproved.
Prudent Alternatives.
Sec. 30311d(6) Conservation Mitigation Credits Disapproved the
for Easements for Impacted Agricultural Sites. statement:
``protection and
restoration of the
impacted site.''
Sec. 30321(5) Definition of ``Not Contiguous''.. Disapproved.
Sec. 30321(6) Use of Drains to Establish Disapproved.
Jurisdiction.
Sec. 30321(7) Defines Drains, Ditches, etc. as Disapproved: the first
Not Being Wetlands. sentence ``A drainage
structure such as a
culvert, ditch, or
channel, in and of
itself, is not a
wetland.''
------------------------------------------------------------------------
Authority: This action is taken under the authority of Section
404 of the Clean Water Act as amended, 42 U.S.C. 1344.
Dated: December 2, 2016.
Robert A. Kaplan,
Acting Regional Administrator.
[FR Doc. 2016-29888 Filed 12-12-16; 8:45 am]
BILLING CODE 6560-50-P
