The Europeanization of the Great Lakes States' Wetlands Laws and Regulations

Abstract

The gleaning by activist federal courts from legislative history of wetlands protection from the Clean Water Act, a statute that did not refer to the term “wetlands” until the CWA’s 1977 amendments, and then only once in a single provision intended to delegate responsibility for CWA implementation to the States, has its roots in the environmental movements of the 1970’s. These movements were the result of the Nixon administration’s 1970 creation of the Environmental Protection Agency (“EPA”) via Reorganization Plan No. 3, its signing into law Congress’ 1972 revision of the Federal Water Pollution Control Act (the CWA 1977’s predecessor statute), and its execution of the first iteration of the Canada-United States Great Lakes Water Quality Agreement (“GLWQA”). Quite clearly, former President Nixon “recognized the huge political power of environmentalism, which blossomed into a popular movement just around the time of his election,” and “[p]oliticians, both Democratic and Republican, were falling over themselves to claim the mantle of environmental advocacy.” Apparently, little is publicly known about the GLWQA and its most recent amendment, the other transborder agreements reached and the initiatives pursued by the national governments of Canada and the United States, and by the governments of the Canadian provinces and the U.S. States bordering the Great Lakes, since the birth of the American environmental movement, such as the Great Lakes Regional Collaboration (“GLRC”) and the Great Lakes Restoration Initiative (“GLRI”). And even less is known about how those agreements and initiatives incorporate the legal and scientific norms championed by the European and global environmental movements now anchored in the United Nations Commission on Sustainable Development established in 1992 and United Nations Environment Programme, which have, in turn, adversely influenced the design, implementation and enforcement of strict liability environmental laws and regulations in the eight Great Lakes States. The thesis of this article is that various wetlands, floodplains, inland waterway and soil and erosion control provisions of Michigan’s Natural Resources Environmental Protection Act (“NREPA”) and implementing regulations, and the enforcement practices of the Michigan Department of Environmental Quality and the Michigan Department of Natural Resources have effectively been “Europeanized” as the result of the confluence of these national, regional and global environmental agreements, implementing federal and state laws and regulations, and international, national and interstate initiatives. The article will identify and discuss these agreements and initiatives and demonstrate their adverse impacts via legal analysis and anecdotal examples culled from legal representation of clients with business operations in the State of Michigan.