[Federal Register Volume 62, Number 220 (Friday, November 14, 1997)]
[Rules and Regulations]
[Pages 61173-61175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29623]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 233
[FRL-5918-7]
Approval of Modifications to Michigan's Assumed Program To
Administer the Section 404 Permitting Program Resulting From the
Reorganization of the Michigan Environmental Agencies
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of approval.
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SUMMARY: Notice is hereby given that the United States Environmental
Protection Agency (EPA) approves of the modifications of Michigan's
assumed Clean Water Act Section 404 (Section 404) permitting program
which resulted from Michigan Executive Order 1995-18 which reorganized
Michigan's environmental agencies.
EFFECTIVE DATE: November 14, 1997.
FOR FURTHER INFORMATION CONTACT: Kevin Pierard, Chief, Watersheds and
Non-Point Source Programs Branch, Water Division, U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312) 886-4448.
SUPPLEMENTARY INFORMATION:
Note: This action is one of four Federal Register actions
related to reorganization of state environmental agencies in
Michigan. All these actions are published together in the Federal
Register, with the exception of a Clean Air Act State Implementation
Plan published on November 6, 1997 at 62 FR 59995.
I. Background
The State of Michigan assumed Federal Clean Water Act Section 404
permitting authority on October 16, 1984. Procedures for revision of
State programs at 40 CFR 233.16 require that EPA review any revisions
to state assumed Section 404 programs, determine whether such revisions
are substantial, and approve or disapprove the revisions.
On November 25, 1994, EPA approved of revisions to Michigan's
Section 404 program resulting from Executive Order 1991-31, which
transferred the responsibilities and authorities of the Michigan
Department of Natural Resources (MDNR) to the Director of a new MDNR.
On July 3, 1995, Michigan Governor John Engler signed Executive Order
1995-18 (Executive Order), which elevated the former Environmental
Protection Bureau of MDNR to full departmental status as the Michigan
Department of Environmental Quality (MDEQ), effective October 1, 1995.
MDEQ retained all of its environmental duties, functions and
responsibilities and virtually all of the personnel formerly assigned
to it as a bureau in the MDNR. In addition, certain other environmental
duties, functions and responsibilities of the Law, Geographical Survey
and Land and Water Management Divisions were transferred to MDEQ, as
was the authority to make decisions regarding administrative appeals in
those matters under its purview.
The Attorney General, in a statement dated June 13, 1996,
statement, certified to the following:
It is my opinion that E.O. 1995-18 did not substantively change
the state's statutes or rules relating to the administration of
federally delegated programs nor was any authority, power, duty or
function contained within Michigan's statutes or rules applicable to
federally delegated programs diminished by the execution of E.O.
1995-18. Specifically, E.O. 1995-18 did not affect program
jurisdiction, the scope of activities regulated, criteria for the
review of permits, public participation, enforcement capabilities or
the adequacy of Michigan's legal authority to carry out its
federally delegated programs.
Based upon a review of this information, as well as a review of the
Section 404 program documents submitted in support of Michigan's
original (1983) request for EPA approval and the materials submitted by
Michigan and considered by EPA in approving of revisions to Michigan's
Section 404 program on November 25, 1994, EPA preliminarily concluded
that the Executive Order did not substantially revise the State of
Michigan's Section 404 program and that any revisions resulting from
the Executive Order should be approved. This preliminary determination
was based upon the fact that none of the statutes or rules which
comprise Michigan's Section 404 program changed as a result of the
Executive Order and MDEQ retained virtually all of the personnel
formerly assigned to it as a bureau in MDNR.
Although none of the statutes or regulations which comprise
Michigan's program changed, there was one additional matter that EPA
considered before making its preliminary determination. Specifically,
the Executive Order provides that the Director of MDEQ now decides
administrative appeals of wetland permitting decisions, rather than the
Michigan Natural Resources Commission. However, this change does not
affect the Michigan Section 404 program's ``area of jurisdiction, scope
of activities regulated, criteria for review of permits, public
participation, or enforcement capability.'' 40 CFR 233.16(d)(3).
Consequently, EPA did not view this change to be a substantial
revision. Moreover, EPA preliminarily concluded that this revision
should be approved because it is not inconsistent with anything in the
Clean Water Act or its implementing regulations.
While not required to do so according to the State Section 404
program regulations, EPA chose to invite public comment concerning the
Agency's preliminary determinations. Consequently, on March 28, 1997,
EPA published a notice in the Federal Register of its preliminary
determinations that the Executive Order caused no substantial revisions
to Michigan's Section 404 program and that any revisions to Michigan's
Section 404 program that resulted from the Executive Order should be
approved. EPA also indicated that it might conduct a public hearing, if
there was significant public interest based on requests received.
Finally, EPA stated that its preliminary decision only addressed, and
EPA was only seeking comment on, the impact of the Executive Order on
Michigan's Section 404 program.
II. Comments
In response to the March 28, 1997, notice, EPA received comments
from three commenters: the Tip of the Mitt Watershed Council, the East
Michigan Environmental Action Council, and the Michigan Environmental
Council. The commenters all raised the same two issues. First, the
commenters noted that the Executive Order transferred authority to hold
hearings and make findings of fact and render decisions on contested
Section 404 permits from the Natural Resources Commission, a public
body that was subject to Michigan's Open Meetings Act, to the Director
of
[[Page 61174]]
the MDEQ, who in turn delegated that authority to the MDEQ Office of
Administrative Hearings, an entity that is not a public body and
therefore is not subject to Michigan's Open Meetings Act.
The public participation requirements for state Section 404
programs are set forth at 40 CFR 233.32-34. The only ``Open Meetings
Act'' type requirements in those regulations is at 40 CFR 233.33, which
requires that state Section 404 programs provide an opportunity for
public hearings at which the public must be allowed an opportunity to
submit oral and written statements or data concerning a permit
application or draft general permit. Michigan clearly continues to
comply with this requirement. See Section 281.708 of the Michigan
Compiled Laws. Nothing in the state Section 404 wetland program
regulations requires that adjudicatory hearings on contested permits be
open to the public. Consequently, the fact that these types of hearings
may not necessarily be open to the general public in Michigan is not a
basis for disapproving of the revisions resulting from the Executive
Order.
We further note that Michigan did not represent in its original
1983 program submission, and EPA in reviewing and approving of that
original program submission did not find, that Michigan was relying on
the Michigan Open Meetings Act to demonstrate that it had authority to
comply with the federal public participation requirements. Rather,
Michigan cited to Sections 8 and 10 of its Wetlands Protection Act,
Section 5 of its Water Resources Act, Section 6 of its Inland Lakes and
Streams Act, and Sections 41-42 of its Administrative Procedures Act,
to demonstrate that it had such authority. None of these statutory
provisions were affected by the Executive Order. Consequently, any
changes resulting from the Executive Order pertaining to the
applicability or inapplicability of the Michigan Open Meetings Act do
not in any way constitute changes in Michigan's approved Section 404
program.
The second issue raised by the commenters is that, under the
Executive Order, the Chief Administrative Law Judge for the Office of
Administrative Hearings who decides certain contested Section 404
permits is appointed by the Director of the MDEQ and so allegedly will
not be capable of exercising decisionmaking authority independent of
the Director of the MDEQ. However, there is nothing in the state
Section 404 program regulations pertaining to administrative appeals of
permit decisions. Consequently, the possibility that the Chief
Administrative Law Judge may not be entirely independent of the
Director of the MDEQ is not a basis for disapproving of the revisions
resulting from the Executive Order.
Of course, if as a result of the changes to the administrative
appeals process resulting from the Executive Order, Michigan repeatedly
issues Section 404 permits which do not conform with the requirements
of the Clean Water Act, this might serve as a basis for withdrawal of
Michigan's Section 404 program under 40 CFR 233.53. EPA notes that it
currently has pending before it a February 4, 1997, petition to
withdraw Michigan's Section 404 program that was filed by the Michigan
Environmental Council (MEC) which alleges, among other things, that
Michigan is in fact repeatedly issuing such permits in part because of
the changes to the administrative appeals process. EPA is separately
investigating the allegations in that petition to determine whether
cause exists to commence withdrawal proceedings. EPA, in approving of
the revisions to Michigan's Section 404 program resulting from the
Executive Order, is in no way expressing any opinion on the question of
whether withdrawal proceedings should commence in light of the
allegations in the MEC petition. Moreover, EPA is not expressing any
opinion on questions which MEC separately raised in a letter dated June
14, 1996, regarding the impact of Michigan's Public Act 132 of 1996 on
Michigan's Section 404 program. Instead, EPA is addressing those
questions separately.
In a related comment, one commenter argued that, under the
Executive Order, the Director may ``appoint an individual within or
outside the [MDEQ]'' to decide certain administrative appeals in which
the Director has been involved. The commenter also noted that there is
no statutory definition of the individuals eligible for service in this
role and so ``it is conceivable that an individual with a personal or
financial interest in the project at issue could be appointed to decide
an appeal.'' However, in contrast to 40 CFR 123.25(c), there is nothing
in either the Clean Water Act or in EPA's implementing regulations
governing conflicts of interest in state Section 404 programs.
Consequently, the possibility that such a conflict could arise is not a
sufficient basis to disapprove of the revisions to Michigan's Section
404 program resulting from the Executive Order. Moreover, although not
necessary to our decision, we note that Michigan has represented to EPA
that all decisionmakers appointed by the Director will be required to
sign a ``Conflict of Interest Certification'' certifying that they ``do
not now receive, nor have ever received, any income directly or
indirectly from any person who holds a permit, has applied for a
permit, or who is subject to an enforcement order issued pursuant to or
under the authority of [the Clean Water Act].'' Consequently, the
possibility that an appointed decisionmaker might have a financial
conflict of interest is extremely remote.
Finally, all three commenters stated that they believed that the
revisions resulting from the Executive Order were substantial and so
requested a public hearing. EPA is required to provide an opportunity
for a public hearing under 40 CFR 233.16(d)(3) if a proposed revision
is substantial. 40 CFR 233.16(d)(3) provides that ``substantial
revisions include, but are not limited to, revisions that affect the
area of jurisdiction, scope of activities regulated, criteria for
review of permits, public participation, or enforcement capability.''
As described above, none of the statutes or rules upon which EPA
authorized Michigan's Section 404 program changed as a result of the
Executive Order. Instead, the Executive Order simply changed the people
or entities responsible for carrying out the various functions set
forth within these statutes and rules. Consequently, EPA does not
believe that the revisions to Michigan's Section 404 program resulting
from the Executive Order are substantial.
Moreover, in light of the fact that EPA only received three sets of
comments which addressed virtually identical issues, EPA does not
believe that there is sufficient public interest in this matter to hold
a public hearing. Finally, none of the comments explained why a public
hearing was necessary or would be helpful in resolving the question of
whether EPA should approve of any revisions to Michigan's Section 404
program. Consequently, EPA is not providing for a public hearing.
III. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735; October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or
[[Page 61175]]
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The Office of Management and Budget (OMB) has exempted EPA action
on State Section 404 programs from OMB review.
B. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
EPA's approval of any revisions to Michigan's Section 404 program
resulting from the Executive Order contains no Federal mandates (under
the regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. Instead, EPA's determination
merely recognizes an internal reorganization of an existing approved
Section 404 State program; and this determination does not contain any
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Therefore, this determination is not
subject to the requirements of section 202 of the UMRA.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of affected
small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Because EPA's determination to approve of any revisions to Michigan's
Section 404 program resulting from the Executive Order merely
recognizes an internal reorganization of an existing assumed State
Section 404 program, EPA's determination contains no regulatory
requirements that might significantly or uniquely affect small
governments.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) provides that, whenever an
agency promulgates a final rule under 5 U.S.C. 553, after being
required to publish a general notice of proposed rulemaking, an agency
must prepare a final regulatory flexibility analysis unless the head of
the agency certifies that the final rule will not have a significant
economic impact on a substantial number of small entities. 5 U.S.C. 604
& 605. The Regional Administrator today certifies, pursuant to section
605(b) of the RFA, that approval of any revisions to Michigan's Section
404 program resulting from the Executive Order will not have a
significant impact on a substantial number of small entities.
The basis for the certification is that EPA's approval simply
results in an administrative change in the structure of the assumed
Section 404 program, rather than a change in the substantive
requirements imposed on any small entity in the State of Michigan. This
approval will not affect the substantive regulatory requirements under
existing State law to which small entities are already subject.
Additionally, approval of the Section 404 program modification will not
impose any new burdens on small entities.
D. Paperwork Reduction Act
This approval contains no requests for information and consequently
is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
IV. EPA's Final Determination
EPA, after review and consideration of all the information
submitted by Michigan and the comments received, has determined that
the revisions to Michigan's Section 404 program resulting from the
Executive Order should be approved. Moreover, EPA has determined that
the revisions are not substantial.
Dated: October 1, 1997.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 97-29623 Filed 11-13-97; 8:45 am]
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