Category: Legislative Affairs

Best Lobbying Approach for the Remainder of the Legislative Session? Be Ready For Anything!

In my sixteen years in the Michigan House and Senate (spread out between 1990-2018), I’ve learned many lessons. This latest lesson to us all is “to be ready for anything.” No amount of experience could have prepared the Legislature for the challenges the coronavirus pandemic is currently presenting. Unprecedented public health challenges and logistical challenges will need to be addressed to simply keep the Legislative Branch operational.

As of this writing, based upon my conversations with both members and staff of the House of Representatives and the Senate, no one is precisely certain of the specifics of how the people’s business will be conducted. As was demonstrated by the House and Senate session of April 7th, the utmost effort is being made to protect the health and safety of members, staff, and citizenry alike. The session calendar indicates a return to Tuesday, Wednesday, Thursday session days beginning May 5th, save the extension of the “stay-at-home” order, and in the coming weeks there is a Joint Committee meeting on the COVID-19 response. In keeping with Governor Whitmer’s Executive Order, both partisan and non-partisan staff are working entirely from home–and they could remain so even after the “stay-at-home” order is lifted or modified. The logistical challenges of facilitating committee and floor action may result in far fewer, but much longer, session days.

The pressures of the Legislative Calendar have always been used by the Caucus leaders to compel the “Collective Legislative Mind” to focus on the challenges before it. This dynamic will be magnified ten-fold in the session days that remain before the summer recess. The demands of addressing the policy and budgetary aspects of the coronavirus crisis, the normal aspects of the Appropriations process, and individual members and caucus policy priorities will tax the Legislature to its limits.

I am confident they are up to the task.

The House and Senate will undoubtedly “Burn the Midnight Oil” for the balance of the spring session.

We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

Director of Governmental Affairs at Fraser Trebilcock, David B. Robertson was a Michigan State Senator of the 14th District of Michigan, representing Southeastern Genesee County and Northwest Oakland County. While a State Senator, Mr. Robertson was elected Caucus Chairman by his colleagues, and introduced non-partisan legislation positively impacting Michigan residents. He can be contacted at 517.377.0836 or drobertson@fraserlawfirm.com.

US EPA Approves and Disapproves of Michigan’s Changes to the Inland Lakes & Streams and Wetland Protection Acts

EPAOn July 2, 2013, the Governor signed into law 2013 Public Act 98 which made some very significant changes to Michigan’s Inland Lakes & Streams and Wetlands Protection Acts which are known as “part 301” and “part 303,” respectively, of Michigan’s Natural Resources and Environmental Protection Act. The federal Clean Water Act required the United States Environmental Protection Agency (“USEPA”) to approve or disapprove those changes in the law. According to the Michigan Department of Environmental Quality, the failure of Michigan to make legislative changes to comply with the federal Clean Water Act would have resulted in the USEPA’s termination of Michigan’s authority to regulate wetlands which are subject to the federal law.

On July 5, 2013, the State of Michigan requested the USEPA to approve 2013 Public Act 98. On December 11, 2013, the USEPA conducted a public hearing in Lansing and received more than 200 comments about this Act at that hearing. The USEPA also received many written comments about this legislation.

On December 13, 2016, three years after it held the public hearing, the USEPA released the results of its review of this public act. It approved some of the changes and disapproved others. The USEPA’s publication of its findings did not say whether it was going to withdraw or not withdraw Michigan’s authority to regulate federally protected wetlands. Odds are it will not do so.

The USEPA approved the legislation which exempted one from the need to obtain a permit to maintain an agricultural drain as long as that maintenance did not change the drain’s location, depth and bottom width as of July 1, 2014 and as long as that work was done either by the landowner or pursuant to Michigan’s drain code of 1956. The USEPA also approved the legislation which describes and defines the “best management practices” for drain maintenance. However, the USEPA disapproved the legislation which would have allowed a landowner to replace a culvert without a permit from the MDEQ.

The USEPA disapproved the exemption from the permit requirement for provided controlled access for livestock crossing. It also approved the new definition of an agricultural drain which is a human-made conveyance of water that does not have continuous flow, flows primarily as a result of precipitation induced runoff, serves agricultural production and was constructed either before January 1, 1073 or was built in compliance with Michigan’s wetland protection act.

The USEPA disapproved of the Michigan law which would have allowed a landowner to construct a water treatment pond or storm water detention facility, construct a new drain in upland property to remove excess soil from agricultural lands, and engage in an agricultural soil and water conservation practice to enhance water quality without obtaining a permit from the MDEQ. The USEPA also disapproved of the law’s provision that an area which becomes contiguous to a water body created by commercial excavation for sand, gravel or mining activities is not subject to regulation under the amended Act.

The USEPA also disapproved of the Act’s definition of whether a wetland is “continuous” to the Great Lakes or an inland lake, river or stream; it also disapproved the Act’s statement that the MDEQ shall not consider an agricultural drain in determining whether a wetland is continuous to such a body of water. The USEPA disapproved of the Act’s provision that a drainage structure such as a culvert, ditch or channel is not a wetland.

The USEPA also approved some changes in the law which impose new requirements for blueberry farmers and approved most of the Act’s technical changes to the permitting process such as those pertaining the fees which the MDEQ can charge and the time the MDEQ should take to issue a permit.

It remains to be seen how Michigan’s Legislature, the MDEQ, the agricultural community and persons commonly described as “environmental activists” will respond to the USEPA’s approvals and disapprovals of parts of Michigan’s 2013 changes to the Inland Lakes & Streams and Wetland Protection Acts. Stay tuned.

Additional Resources:

Click HERE for a complete look at the USEPA’s decision for each PA 98 revision, as well as supporting documents and additional information provided by the government.

Click HERE for a look back at history of this legislation and the process which culminated in the passage of 2013 Public Act 98.

Questions? Contact us to learn more.

perry-everett-web-blogAttorney Michael H. Perry is a shareholder and previous President of Fraser Trebilcock with over 35 years of environmental and litigation experience. You can contact Mike at mperry@fraserlawfirm.com or 517.377.08846.

Scott D. Everett is the Director of Legislative Affairs for Fraser Consulting, a subsidiary of Fraser Trebilcock law firm that provides full-service lobbying assistance. You can reach Scott at severett@fraserlawfirm.com or 517.377.0839.