Nature’s kidneys need local protection

Wetlands once made up 32% of all land across the Upper Peninsula. However, due largely to historical mining and logging industrialization and nowadays to residential and commercial development, nearly 900,000 acres of wetlands have been destroyed in the UP, a 22% loss. Every county in the UP experiences significant wetland degradation, and loss is concentrated most heavily in Ontonagon County, which has lost 70% (147,848 acres) of its wetlands to date.

In June 2023, the Supreme Court issued its decision in Sackett v EPA, a case originally about whether a couple could fill some wetlands to build a house near a lake, which turned into the Court further limiting the scope of the Clean Water Act (CWA). In a 5-4 decision, the Court redefined the CWA’s coverage of “waters of the United States” (WOTUS) to cover only
(1) relatively permanent bodies of water – like streams, rivers, and lakes – connected to traditional navigable waters, and (2) wetlands which have a continuous surface connection to those waters. The “continuous surface connection” test means the wetland must be virtually indistinguishable from the navigable, or boatable, body of water, to be protected under WOTUS. This decision severely limits the EPA’s ability to require permits for wetland impacts, removing authority for around 90 million acres of wetlands nationwide, and poses consequences for other water protections as well. 

Luckily, Michigan’s Department of Environment, Great Lakes and Energy (“EGLE”) has an agreement with the EPA giving them authority to administer the federal wetland program as well as its own state-level program. The state has fairly strong wetland regulations, and is able to pass stronger environmental protections than the federal government due to a law passed in 2023 which reversed a “no stricter than federal” law from 2018. This reduces the daunting effects of Sackett in Michigan. However, legal analysis and education jumpstarted by the Sackett decision illuminate the gaps in Michigan’s state-level regulations and highlight the need for local protection. 

State-level wetland protection is administered by EGLE through Part 303 of Michigan’s Natural Resources and Environmental Protection Act, originally passed in 1979. Part 303 requires landowners to obtain a permit from EGLE before impacting a regulated wetland, and contains a mitigation component requiring most regulated wetland impacts to be offset by wetland restoration or creation elsewhere. Impacts requiring permits include filling, dredging, draining, or building in a wetland. For a wetland to have protection under Part 303, it must: 

• Be situated within 1000 feet of a Great Lake;
• Be situated within 500 feet of an inland lake or stream;
• Be 5 acres or larger in size; or
• Be determined by EGLE as essential to the preservation of the state’s natural resources.

While these criteria provide regulatory protection for many of the wetlands in the UP, they don’t offer full protection, as made clear through Michigan’s extensive wetland loss. Notably, these criteria prevent the state from regulating wetlands smaller than 5 acres if they’re not connected to lakes or streams. This has and continues to allow landowners and developers to destroy small, isolated wetlands, without a permit, unless local protections come into play. Also, though they often propose changes to applications, EGLE rarely denies permits when completed fully and correctly. Additionally, exempted from regulation are wetland impacts due to ongoing farming, ongoing grazing, logging, drain maintenance, fishing, hunting, trapping, boating and other recreational activities.

That’s where local protections can come in. Local governments are able to pass Wetland Ordinances to regulate those wetlands protected by the state, as well as isolated wetlands between 2-5 acres in size, and those smaller than 2 acres but which are critical to the preservation of the community’s natural resources. There’s even a sample ordinance on EGLE’s website. Despite this, not a single municipality in the UP has passed a Wetland Protection Ordinance (though some have setback requirements including wetlands). 

As a state deriving so much of its culture and pride from our clean freshwater, we sure should be doing everything we can to protect our ecosystems’ kidneys.