Navigating Michigan's Murky Waters: An Overview of Michigan Water Law

Summary

The Great Lakes region of the United States is home to some of the most important freshwater resources in the world, with Michigan being no exception. Unfortunately, Michigan is currently facing a major problem with water quality, with the freshwater resources being muddied by a number of factors. Pollution, industrial runoff, and agricultural runoff are all contributing to the muddy, murky waters of Michigan. This pollution is causing serious problems for marine life and human health, leading to the need for increased regulation and better environmental practices.


One of the most concerning pollutants polluting Michigan's waters is phosphorus, which is used by plants to grow and function. This phosphorus can come from many sources, including sewage treatment plants, industries, and agricultural runoff. Unfortunately, too much phosphorus in the water can lead to algal blooms, which can cause a host of environmental issues. Algal blooms can lead to oxygen depletion and the accumulation of harmful toxins, both of which can cause serious harm to the fish, animals, and humans that rely on these waters.

To combat this issue, Michigan has put in place regulations to limit the amount of phosphorus that can find its way into the lakes. Unfortunately, these regulations are not always effective and phosphorus levels often remain high. Agricultural runoff is one of the main culprits, as farmers are often not held accountable for the fertilizers and pesticides they use on their land.

The issue of muddied waters in Michigan has been a major concern for the state for years, and it seems to be getting worse. In order to maintain the safety and health of the people, animals, and ecosystems in the area, more regulations and better environmental practices must be implemented. This includes stricter limits on phosphorus levels, better enforcement of existing regulations, and more stringent agricultural practices. Only then can the muddy waters of Michigan be brought back to their original cleanliness and health.
 

Muddied Waters in Michigan

Michigan has seen a dramatic shift in the environmental landscape in the past few decades. With an increase in development and industry, the state has experienced an influx of pollutants into its waterways. This has caused a number of issues for wildlife and human health, including an increase in algal blooms and fish kills.

With the rapid changes to the environment, the Michigan Department of Environment, Great Lakes and Energy (EGLE) is tasked with regulating the pollutants entering the state's water sources. Unfortunately, there have been multiple instances in which this task has gone wrong, allowing pollutants to slip through the cracks and cause long-term damage to the health of Michigan's waterways.

EGLE is responsible for monitoring Michigan's waterways and enforcing regulations on industries that produce or use potentially hazardous chemicals. It also has authority to issue permits that are necessary before certain activities, such as the discharge of wastewater, can be carried out. EGLE is expected to protect Michigan's water resources, but it has been accused of failing to enforce regulations and issuing permits that do not adequately deal with the risks posed by the pollutants entering the water source.

The lack of enforcement by EGLE has been a major source of concern for many Michigan residents. Pollutants from industry and development have been flowing unchecked into Michigan's rivers and lakes, causing a range of health and environmental issues. Algal blooms and fish kills have been observed in areas where pollutants are present. This has prompted a number of legal battles over the handling of the issues by EGLE and the state government.
 

EGLE and Pollution in Michigan

For many years, Michigan's waterways have been threatened by pollutants entering the water sources from industry and development. With an increase in environmental regulations, the Michigan Department of Environment, Great Lakes and Energy (EGLE) has been tasked with monitoring the state's water sources and issuing permits to limit the potential harm of pollutants. However, many of these permits have fallen short of the necessary requirements and have failed to protect Michigan's water resources. This has caused serious health and environmental issues, such as algal blooms and fish kills in areas where pollutants are present.

The lack of enforcement from EGLE has drawn criticism from many Michiganders and has resulted in numerous legal battles. Despite the efforts of the state government, the pollution of Michigan's waters shows no sign of abating. In order to protect the health of Michigan's residents and the environment, EGLE must take more effective action and ensure that the permits it issues are up to the required standards of environmental protection.

That was 1988. This is now, and Rapanos is asking the Supreme Court to get him out of a jam he got himself into. Trouble is, the U.S. Army Corps of Engineers says those acres are wetlands, and nobody is going to build anything on a wetland without the engineers' OK.

Constant readers will recall that I have sided with John Rapanos before. In person, he may be a most agreeable companion. In this lawsuit he comes across as a mulish fellow, determined to have his own way, no matter what. He has managed to raise the hackles of every federal judge (but one), every army engineer and every government witness he has encountered since the case began. He can be a Very Difficult Man. But in this controversy, he's right-on.

To shorten a long and unhappy story, state authorities advised him repeatedly in the 1980s that the several sites were federally protected wetlands. To develop them, he would need permits. Rapanos repeatedly ignored them. He hired a consultant to be his expert witness. When the consultant brought in a report saying the site was indeed a wetland, he fired the consultant.

In April 1989, still without a permit from the army engineers, Rapanos began preparing the site for construction. He dumped sand over the wetland vegetation. At one site he set bulldozers to building roads. The Environmental Protection Agency sent him a compliance order. He ignored it. The state issued a cease-and-desist order. He neither ceased nor desisted.

Eventually, the federal government ran out of patience and filed both civil and criminal charges against him for violation of the Clean Water Act. The charges led to repeated trials and appeals. At one point, U.S. District Judge Lawrence Zatkoff said the government had gone "crazy" in its criminal prosecution. Proceedings led finally to a fine of $185,000 and a sentence of at least 10 months in a federal prison. John Rapanos is now 70 years old. The sentence is in abeyance.

The separate civil action in U.S. District Court led to penalties and mitigation fees that add up to several million dollars. Last July a panel of the U.S. Court of Appeals for the 6th Circuit reluctantly affirmed the civil judgment. On Jan. 28, with the help of the Pacific Legal Foundation, Rapanos appealed to the U.S. Supreme Court. This is a case the high court should hear.

U.S. District Judge Danny C. Reeves, sitting in the 6th Circuit by designation, began by emphasizing that the act's reach does not extend to all waters. There are jurisdictional limits, but these are "far from obvious." In two leading cases, the Supreme Court has done little "to clear the muddied waters" of the act's jurisdiction. Still, in determining a "significant nexus" between wetlands and navigable waters, the engineers' interpretation is entitled to deference. Unless their interpretation is "arbitrary, unreasonable, and manifestly contrary to the statute," it must prevail.

It is not necessary to federal jurisdiction, said the court, that wetlands be adjacent to navigable waters. Congress "clearly intended that the Clean Waters Act's jurisdiction would extend to bodies of water exhibiting a hydrological connection to traditional navigable waters." There is a "symbiotic relationship" that must be respected.

Symbiotic relationship? Hydrological connection? In the name of the founding fathers, what are we talking about? The federal government's case against John Rapanos hangs on gossamer threads. Under the Constitution, Congress has power "to regulate commerce among the several states" and "to provide for the general welfare of the United States."

Here there is not the slightest evidence that the Rapanos "wetlands" figure in interstate commerce. We are not talking of national parks that contribute to the general welfare. We are talking about federal control over a drainage ditch 20 miles from Saginaw Bay in the sovereign state of Michigan.

Faithful readers have tolerated me for nearly 60 years as an unreconstructed defender of the 10th Amendment. If Michigan wants to pursue its case against John Rapanos under its own laws protecting its own wetlands, it has that power. Until then, sound constitutional doctrine requires that those 50 soggy acres be off-limits to the feds.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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