Ever since it was established in 1995, the state agency that has attracted the most persistent disdain from Michigan’s conservative right is the Department of Environmental Quality. And the regulatory program that has prompted the most political ire from the right is the state’s effort to oversee the filling and draining of wetlands. Prominent Republican constituents, among them road builders, home builders, realtors, big box retailers, and farmers say the DEQ is doing too much to protect wetlands and restrict what they see as important development projects.

So it came as little surprise late in June when a Republican-sponsored bill designed to weaken the DEQ’s wetland protection program and speed road construction in Michigan zoomed through the Republican-controlled state House of Representatives. Lawmakers who voted for the measure were convinced that they were setting the state on a new path of regulatory efficiency, business development, and economic growth.

But an investigation by the Great Lakes Bulletin News Service has concluded that the measure, passed on June 29, 2005 by 53 of 58 Republican House members -- and 10 of 52 Democrats --   would produce just the opposite results. Should the bill become law, said an array of private and government experts, these are the almost certain outcomes for state businesses:

• Michigan would be stripped of its authority to oversee wetlands and the regulatory program would wind up in federal hands.
• The time government takes to review permit applications to fill or drain wetlands would expand from weeks to many, many months.
• Timetables for construction projects of every sort – roads, housing, retail stores, new plants – would be slowed so considerably it would exacerbate Michigan’s already damaged job market and economic prospects.

Senate Opposition Develops
The consequences are so significant that the proposed measure to weaken Michigan’s wetland law, House Bill 4892, has split the Republican leadership and divided many of its prominent constituency groups. Republican lawmakers in the state Senate, along with prominent business organizations, are now massing to block a vote on HB 4892 in that body.

Senator Patricia Birkholz, the Republican chair of the Natural Resources and Environmental Affairs Committee, which will consider the measure, signaled her clear intention to take a very hard look at a proposal she disagrees with. Senator Birkholz, a lawmaker from Saugatuck, said in an interview that she has “very serious concerns” about the bill’s effects on the environment and the possibility that it would cede control of a crucial state permitting process to a less efficient, slower, more distant federal agency, the U.S. Army Corps of Engineers.

“Once the Feds take the program,” Senator Birkholz said, “it’s almost impossible for us to get it back.”

Several of the state’s most influential business and government associations back Senator Birkholz, and endorse her plan for Michigan to retain the state-managed wetland permitting program. Those groups, which include the Michigan Chamber of Commerce, the Michigan Townships Association, and the Construction Association of Michigan, say that the DEQ is much faster at reviewing permit applications, and the state environment agency’s permitting process is simpler than the federal government’s.

“The DEQ has been an exemplary state agency in getting the red tape cut and speeding things up,” said Michael Lawson, the manager of industry relations for the Construction Association of Michigan. “It’s good for business.”

Wetlands: A Primer
Indeed, as a natural resource worth protecting for economic utility, wetlands are at the very top of the heap.  Wetlands provide natural absorbent powers to cleanse water flowing into lakes and rivers, and control flooding. They collect water and release it slowly into the ground to replenish the aquifers that almost half of all Michigan residents depend on for their water.  And wetlands provide habitat for wildlife and fish.

Wetlands, though, are in trouble in Michigan. Since the state was settled in the late 1700s more than 5.6 million acres of wetlands have disappeared. Fifty percent of the state's inland wetlands, and 70 percent of the coastal wetlands have been lost. This massive change to the landscape has caused increased flooding, water pollution, and diminished wildlife.

In 1980 Michigan passed a wetland protection law that required permits for filling and draining wetlands for commercial and industrial development, housing, roads, agriculture, and logging.  In some cases the state requires developers to “mitigate” the loss of natural wetlands by constructing man-made wetlands, which by the DEQ’s own assessment don’t function nearly as well. The state estimates that an estimated 500 acres of wetlands statewide are lost each year from permitted activities, and another 500 acres are ruined from unpermitted development.

Since 1984, Michigan has been one of just two states (the other is New Jersey) that has managed its own wetland law, which calls for builders to file applications and to gain state permits if they want to fill or drain a wetland. Wetlands in every other state are protected under the federal Clean Water Act, and the program is administered by the Army Corps of Engineers and the U.S. Enviromental Protection Agency.

A Political Shot at DEQ That Backfired
House Bill 4892, sponsored by Representative Tom Casperson, a Republican who represents Delta, Dickinson, and Menominee counties in the Upper Peninsula, would accelerate the loss of natural wetlands. It is designed to allow county road commissions to exempt road builders from replacing natural wetlands they disturbed, a requirement of the state’s 25-year-old wetland protection law.

Representative Casperson said in an interview that he wrote the bill at the urging of the Menominee County Road Commission, which spends just over $100,000 of its $3.7 million annual budget to replace wetlands that it disturbs or paves over each year. Road builders, represented by the County Road Association of Michigan, believe Mr. Casperson’s proposal bill will save them time and money that they could spend on paving roads rather than replacing wetlands.

 “In my opinion the DEQ is one of our major problems,” Mr. Casperson said. “It is worth it to challenge the whole program.”

At the national level wetlands are protected under the 1972 federal Clean Water Act. Experts on the Clean Water Act say that Mr. Casperson’s bill would accomplish exactly the opposite of what it was designed to do. The reason: the federal law requires permits for draining, filling, or replacing wetlands. If Michigan no longer requires road builders to do any of those things, the federal government will. That would delay, rather than expedite, road and other construction.

Officials at the U.S. Environmental Protection Agency, which administers the Clean Water Act, said in interviews that Mr. Casperson’s  bill, if enacted, would cost the state its wetlands program. “We would have to initiate withdrawal proceedings,” said Sue Elston, the EPA North Central wetlands program manager, who is based in Chicago.

Ms. Elston added that she had never heard of a legislative proposal like Mr. Casperson’s actually gaining approval from a state legislature. “Nothing has gone this far to threaten the program," she said.”

Martin Jannereth, a supervisor in the EPA’s North Central Land and Water Management Division, agreed, saying that he would “be amazed if it was not problematic.” Other experts point out that, because of requirements under the federal Clean Water Act and the lack of resolve Michigan showed in enforcing wetland laws during the 1990s under former DEQ Director Russ Harding, the state wetland program has been under close EPA scrutiny since 1998.

Who Do You Trust?
The Michigan DEQ under Governor Jennifer M. Granholm asserts that it is doing a much better job administering the wetland law. According to figures supplied by the agency, the DEQ issues water and wetland permits within an average of 60 days after receiving an application. In contrast, a study by the University of California-Berkley found that the U.S. Army Corps of Engineers, the federal agency that would take over the permitting process if the bill becomes law, takes an average of 129 days to issue a general permit and an average of 405 days to issue an individual permit for a larger project.

Prior to the House consideration of Mr. Casperson’s proposal, the DEQ’s Deputy Director, Stanley Pruss, warned the House Transportation Committee that passing the bill as written would undermine both state control of the wetland program, and the quality of wetlands. However, House Republicans on the committee and groups supporting the bill chose to ignore Mr. Pruss’ warning and instead embraced Representative Casperson’s view that his measure would produce little harm to the state’s economy or environment.

“Obviously Representative Casperson indicated that the bill would not lose us the program,” said Representative David Law (R-Commerce Township), the vice-chairman of the House Transportation Committee. “His assurance balanced off the DEQ’s statement for me.”

“From all the indications that I have had,” added Representative Philip LaJoy (R-Canton), the chairman of the Transportation Committee, “what the DEQ says is just not true. I was satisfied that there was no risk.”

A Frantic Effort To Inform Was Ignored
Most House Republicans embraced the same view. After Representative Casperson assured committee members that the bill was safe, discussion of the potential problems ended and the committee approved the bill. With equally startling speed the full House voted on it less than 24 hours later.

Most House members, as a result, did not know about all of the ramifications for the state’s economy and environment, nor did they learn of those problems from the House Republican Policy Office, a party-funded unit that studies the effects of proposed legislation.

The policy office’s analysis failed entirely to mention the risk to the state’s regulatory authority. According to David Worthams, the policy office staff member who wrote the analysis, Representative Casperson told him to ignore the DEQ’s warning because it “was made clear to me” that the claim was “political posturing.” So Mr. Worthams omitted that issue.

With only a few hours left before the House vote, the DEQ tried to communicate its point to lawmakers through a letter warning that the “EPA would have little choice but to initiate withdrawal” if a bill so inconsistent with federal law passed. Most House Republicans apparently did not see the message or doubted its accuracy.  

Jeremy Babener, a student at Haverford College, writes and reports for the Michigan Land Use Institute’s news desk. Reach him at jeremy@mlui.org.