61170 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 123

[FRL–5918–6]

Approval of Modifications to

Michigan’s Approved Program To

Administer the National Pollutant

Discharge Elimination System

Permitting Program Resulting From

the Reorganization of the Michigan

Environmental Agencies

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of approval.

SUMMARY: Notice is hereby given that

the Environmental Protection Agency

(EPA) approves of the modifications of

Michigan’s approved National Pollutant

Discharge Elimination System (NPDES)

permitting program which resulted from

certain Michigan Executive Orders

which reorganized Michigan’s

environmental agencies.

EFFECTIVE DATE: Consistent with 40 CFR

123.62(b)(4), this action is effective

November 14, 1997. In accordance with

40 CFR 23.2, EPA explicitly provides

that this action shall be considered

issued for the purposes of judicial

review November 14, 1997, at 1 p.m.

eastern daylight time. Under section

509(b)(1) of the Clean Water Act,

judicial review of this action can be

obtained only by filing a petition for

review in the United States Court of

Appeals within 120 days after it is

considered issued for the purposes of

judicial review.

FOR FURTHER INFORMATION CONTACT:

Eugene Chaiken, Chief, NPDES Support

and Technical Assistance Branch, Water

Division, U.S. Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604 (312) 886–0120.

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

this Federal Register, with the exception of

a Clean Air Act State Implementation Plan

published on November 6, 1997 at 62 FR

59995.

I. Background

On October 17, 1973, EPA approved

the NPDES permitting program

submitted by the State of Michigan

pursuant to section 402 of the Clean

Water Act. Procedures for revision of

State programs at 40 CFR 123.62

provide for EPA review of any revisions

to federally authorized State NPDES

programs to determine whether or not

such revisions are substantial and to

approve or disapprove any such

revisions.

The Michigan Water Resources

Commission (MWRC) was the name of

the agency authorized to administer the

NPDES program in Michigan on October

17, 1973. On November 8, 1991, the

Governor of Michigan issued Executive

Order 1991–31, which reorganized and

consolidated Michigan’s environmental

agencies. Though initially stayed in the

Michigan court system, the Michigan

Supreme Court ultimately upheld the

validity of Executive Order 1991–31 on

September 2, 1993. Dodak v. Engler, 443

Mich. 560, 506 N.W.2d 190 (1993).

Pursuant to Executive Order 1991–31,

all of MWRC’s authority, powers, duties,

functions and responsibilities pertaining

to Michigan’s NPDES program were

transferred to the Director of the

Michigan Department of Natural

Resources (MDNR), except that

adjudicatory authority and authority to

conduct contested case hearings were

transferred to the Michigan Natural

Resources Commission (MNRC).

Executive Order 1995–4 then transferred

all MNRC authority to make decisions

regarding administrative appeals of

surface water permit applications to the

MDNR Office of Administrative

Hearings. The Attorney General of the

State of Michigan, in a statement dated

August 2, 1995, certified to the

following:

Executive Order Nos. 1991–31 and 1995–

4 and the Governor and Director’s letter

dated February 3, 1995 do not change the

State’s statutes or rules which provide

adequate authority to the State of Michigan

to carry out the program set forth in Governor

William G. Milliken’s ‘‘Program Description’’

dated July 17, 1973. In fact, State statutes and

rules are essentially unaffected by these

Executive Orders and letter. The only way in

which the statutes and rules are affected is

by changing the person or entity responsible

for carrying out the various functions set

forth within these statutes and rules. This

type of reorganization of functions is

consistent with the Constitution of Michigan

of 1963, Article V, Section II.

No authority, power, duties and functions

contained within Michigan’s statutes or rules

applicable to the NPDES program have been

eliminated or changed except for the party

responsible for carrying out such authority,

powers, duties and functions. Accordingly,

in my opinion, the laws of the State of

Michigan continue to provide adequate

authority to carry out the program set forth

in the ‘‘Program Description’’ submitted by

Governor William G. Milliken on July 17,

1973. The adequacy of this legal authority is

unaffected by Executive Order Nos. 1991–31,

1995–4 and the Governor and Director’s letter

dated February 3, 1995.

On July 31, 1995, Michigan’s

Governor John Engler signed Executive

Order 1995–18, which inter alia,

elevated the former Environmental

Protection Bureau of the MDNR to full

independent departmental status called

the Michigan Department of

Environmental Quality (MDEQ). The

MDEQ retained all of its responsibilities

and virtually all of its personnel

assigned to it as a bureau in the MDNR.

The Attorney General of the State of

Michigan, in a statement dated June 13,

1996, 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

NPDES program documents submitted

in support of Michigan’s original (1973)

request for EPA approval, EPA

preliminarily concluded on March 28,

1997, that the Executive Orders did not

substantially revise the State of

Michigan’s Section 402 NPDES

permitting program and that any

revisions resulting from the executive

orders should be approved. This

conclusion was based on two factors.

First, none of the statutes or rules

upon which EPA authorized Michigan’s

NPDES permitting program changed as

a result of the Executive Orders. Instead,

the Executive Orders simply changed

the people or entities responsible for

carrying out the various functions set

forth within these statutes and rules.

Second, as described in the October

24, 1996, letter from MDEQ to EPA, the

Director of MDEQ has ‘‘directed that any

MDEQ staff not in compliance with the

federal requirements [governing conflict

of interest set forth at 40 CFR 123.45(c)]

are not permitted to approve permits,

nor any portion of permits.’’ Moreover,

this directive will be incorporated into

MDEQ’s internal delegation letters and

department policies. Finally, the

Director of MDEQ will require all

individuals that he appoints to decide

administrative appeals of NPDES

permits to certify that they comply with

the CWA conflict of interest

requirements. Consequently, Michigan’s

NPDES program assures compliance

with conflict of interest requirements for

NPDES state programs.

While not required to do so according

to the State NPDES program regulations,
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61171

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 Orders caused no substantial

revisions to Michigan’s NPDES program

and that any revisions to Michigan’s

NPDES program that resulted from the

Executive Orders should be approved.

Additionally, EPA requested specific

comment on the impact, if any, the

Executive Orders have on EPA approval

of the modification to the Michigan

NPDES program recognizing the State’s

authority to issue general permits. EPA

also indicated that it could 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 Orders on

Michigan’s NPDES program.

II. Comments

In response to the March 28, 1997,

notice, EPA received comments from

the Scio Residents for Safe Water and

the Gelman Sciences Site Citizens

Review Committee (‘‘Scio Residents’’).

The Scio Residents allege that the

individuals at MDEQ who are now

responsible for making permitting

decisions have ‘‘compromised

independence,’’ a ‘‘pro business

agenda,’’ and are attempting to

‘‘implement[] blatantly antienvironmental policies without

substantive public involvement or

notice.’’ However, as noted above, none

of the statutes or rules upon which EPA

authorized Michigan’s NPDES

permitting program changed as a result

of the Executive Orders and so Michigan

continues to have the legal authority

and obligation to issue NPDES permits

which are consistent with the Clean

Water Act. The fact that there may be

different people—with allegedly

‘‘compromised independence’’ or

different ‘‘agendas’’ or ‘‘policies’’—who

are responsible for exercising that

authority and fulfilling that obligation

as a result of the Executive Orders is not

a basis for disapproving of any revisions

resulting from those Executive Orders.

Of course, EPA would have the

authority to withdraw program approval

pursuant to 40 CFR 123.63 if, as a result

of any changes caused by the Executive

Orders, Michigan repeatedly issues

NPDES permits which do not conform

with the requirements of the Clean

Water Act. However, that is not at issue

in this matter.

In addition to the comments from the

Scio Residents, EPA also received

comments which were jointly submitted

by the National Wildlife Federation and

the Michigan United Conservation

Clubs (NWF and MUCC). NWF and

MUCC argue that ‘‘EPA’s 1993 approval

of Michigan’s General Permit Program

was illegal’’ because, prior to approving

of Michigan’s General Permit Program,

EPA allegedly violated its own

regulations and past practices ‘‘(1) by

failing to have a complete State program

submission before approving Michigan’s

General Permit Program; (2) by failing to

provide public notice of and comment

on the proposed approval; and (3) by

failing to hold a public hearing.’’

EPA believes that allegations about

the unlawfulness of previous agency

actions are not relevant to a pending

agency matter, except to the extent that

EPA proposes to take allegedly unlawful

actions in the pending agency matter. In

response to the first allegation of

unlawful action, EPA continues to

believe that neither the CWA nor

NPDES State program regulations

require comprehensive review and

‘‘reapproval’’ of the entire underlying

NPDES program each time the Agency

approves a modification to such a

program. EPA regulations establish

procedures for identification (both by

EPA and interested persons) and review

of any allegation of failure by a State to

comply with NPDES State program

requirements. See 40 CFR 123.64(b)(1).

In the specific matter currently before

the Agency, namely, the effect of the

Executive Orders on the Michigan’s

program, the Agency believes that

comprehensive review and

‘‘reapproval’’ is unnecessary. See

National Wildlife Federation v.

Adamkus, 936 F.Supp. 435, 440–41, 444

(W.D. Mich. 1996) (upholding EPA’s

decision, in interpreting comparable

statutory and regulatory provisions

pertaining to EPA’s review of revisions

to State Section 404 wetland permitting

programs, that EPA need not perform a

comprehensive review of an entire

underlying State program when

approving a modification to such

program). Instead, as was made clear in

the March 28, 1997, notice, the issues in

the present matter are: (1) Whether the

Executive Orders caused substantial

revisions to Michigan’s NPDES program;

(2) whether any revisions to Michigan’s

NPDES program that resulted from the

Executive Orders should be approved;

and (3) whether the Executive Orders

have had any impact on EPA approval

of the modification to the Michigan

NPDES program recognizing the State’s

authority to issue general permits.

On the other two issues identified by

the commentors, the opportunity for

public comment and the opportunity for

a public hearing, EPA did provide an

opportunity for public comment in this

matter (and this notice responds to

those comments) and an opportunity for

the public to request a public hearing

(although MWF and MUCC did not

specifically request a public hearing in

this matter). As described below, EPA

does not believe that a public hearing is

necessary based upon the comments

received.

NWF and MUCC also raised a number

of comments in which they claim that

EPA has not fulfilled certain

commitments it allegedly made in its

August 16, 1994 ‘‘Unopposed Motion to

Stay Briefing’’ and in subsequent status

reports filed in National Wildlife

Federation et al. v. Browner, et al., No.

94–3309, a case which is currently

pending in the United States Court of

Appeals for the 6th Circuit. NWF and

MUCC argue that, because the Agency

notified the 6th Circuit that today’s

notice and comment proceedings might

resolve NWF’s and MUCC’s concerns,

and because NWF and MUCC believe

the proceedings do not address their

concerns, EPA has failed to fulfill a

commitment it made to the court. EPA

disagrees that it has failed to fulfill its

commitment to the 6th Circuit. EPA

explained to the court that these

proceedings might resolve NWF’s and

MUCC’s concerns. EPA’s inability to

satisfy NWF’s and MUCC’s concerns is

not ‘‘failure’’ of the Agency, but merely

continuing disagreement between EPA

and the two groups. Based on

comprehensive review of Michigan’s

public participation procedures (a copy

of which is included in the

administrative record for today’s

action), as well as review of the conflict

of interest provisions applicable to

States authorized to administer the

NPDES program, the Agency believes

that the Michigan program satisfies the

applicable public participation and

conflict of interest requirements.

NWF’s and MUCC’s final comment

was that EPA should not approve of the

revisions resulting from the Executive

Orders because ‘‘the primary decision

maker in contested case proceedings,

the Director of the [MDEQ], has engaged

in illegal ex parte communications

about a contested case currently

pending a decision,’’ allegedly in

violation of 40 CFR 124.78(b)(1). NWF

and MUCC also argue that the Michigan

Attorney General had an obligation to

certify that the laws of Michigan are

adequate to prohibit such ex parte

communications. However, the

prohibition on ex parte communications

at 40 CFR 124.78(b)(1) applies only to

EPA and to proceedings before EPA.

Nothing in EPA’s NPDES State program
61172 Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations

regulations at 40 CFR part 123 requires

that States authorized to administer the

NPDES program prohibit such ex parte

communications. Consequently, the

allegation that the Director of MDEQ

might be engaging in ex parte

communications about a contested case,

or the concern that the Michigan

Attorney General has not certified that

the laws of Michigan adequately

prohibit such ex parte communications,

are not sufficient bases for disapproving

of any revisions to Michigan’s NPDES

program resulting from the Executive

Orders.

The Scio Residents requested that

EPA provide a public hearing on this

matter. NWF and MUCC did not

specifically request a public hearing in

this matter (although, as noted above,

NWF and MUCC did criticize EPA for

not holding a public hearing in 1993

prior to approving of Michigan’s

General Permit Program). EPA is

required to hold a public hearing under

40 CFR 123.62(b)(2) if a proposed

revision is substantial and if there is

significant public interest in holding a

hearing based upon requests for a

hearing received by EPA.

As noted above, EPA has determined

that none of the statutes or rules upon

which EPA authorized Michigan’s

NPDES permitting program changed as

a result of the Executive Orders. Instead,

the Executive Orders 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 NPDES

program resulting from the Executive

Orders are substantial. Moreover, EPA

only received two sets of comments: one

set from the Scio Residents and a

second set that was jointly submitted by

NWF and MUCC; and only the Scio

Residents specifically requested a

hearing. Thus, EPA does not believe that

there is sufficient public interest in this

matter to hold a public hearing. Finally,

neither set of 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 NPDES program

resulting from the Executive Orders.

Consequently, EPA is not providing for

a public hearing.

Finally, EPA notes that the Michigan

Environmental Council (MEC), in a

letter to EPA dated June 14, 1996, raised

questions regarding the impact of

Michigan Public Act 132 of 1996 on

Michigan’s NPDES program. EPA is

addressing those questions separately

and EPA’s approval of the modifications

resulting from the Executive Orders in

this proceeding does not express any

viewpoint on those questions.

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

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 waived review of EPA action

on State NPDES programs .

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 NPDES program resulting

from the Executive Orders 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 NPDES 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 NPDES program

resulting from the Executive Orders

merely recognizes an internal

reorganization of an existing approved

NPDES State 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 NPDES program

resulting from the Executive Orders 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 approved NPDES 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 NPDES 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
Federal Register / Vol. 62, No. 220 / Friday, November 14, 1997 / Rules and Regulations 61173

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 NPDES program resulting

from the Executive Orders 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. 97–29622 Filed 11–13–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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