State Program Requirements; Approval of Program Revisions to Michigan's Clean Water Act Section 404 Program, 89930-89933 [2016-29888]

Download as PDF 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 pmangrum on DSK3GDR082PROD with NOTICES 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 VerDate Sep<11>2014 15:08 Dec 12, 2016 Jkt 241001 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 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 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: E:\FR\FM\13DEN1.SGM 13DEN1 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? pmangrum on DSK3GDR082PROD with NOTICES 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 VerDate Sep<11>2014 15:08 Dec 12, 2016 Jkt 241001 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 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 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 E:\FR\FM\13DEN1.SGM 13DEN1 89932 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. pmangrum on DSK3GDR082PROD with NOTICES 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 ...................................................................................................... VerDate Sep<11>2014 15:08 Dec 12, 2016 Jkt 241001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 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 VerDate Sep<11>2014 15:08 Dec 12, 2016 Jkt 241001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 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 E:\FR\FM\13DEN1.SGM 13DEN1

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]


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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.

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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
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