Wetlands deregulation bill drafted by industry-minded Saginaw commissioner

When Gov. Jennifer Granholm laid out a plan to end state wetlands regulation during last month’s State of the State address, she billed the transfer of oversight to federal authorities as a way to save Michigan $2 million. But State Sen. Roger Kahn (R-Saginaw), who recently introduced legislation to make the proposal part of state law, said his aim with the bill is to reduce the burden of environmental rules on business.

And the man Kahn credits with drafting the legislation, Saginaw Public Works Commissioner Jim Koski, said he dislikes the state program and has ignored its rules at least twice when he felt they were inconvenient to local industry.

“Jim Koski pointed out that by rulemaking, [the Michigan Department of Environmental Quality] has expanded the definition of wetland,” Kahn said in an interview with Michigan Messenger last week. “Koski drafted the bill.”

Opponents of the legislation, which has also been introduced in the House by State Rep. Jim Stamas (R-Midland), are planning on converging at a meeting of the House Great Lakes and Environment Committee and the Appropriations Subcommittee on Environmental Quality scheduled for Tuesday in Lansing.

Elected Saginaw County drain commissioner in 1976, Koski left public service for a decade to work as a wetland consultant in the private sector. Now as Saginaw County public works commissioner, Koski is working to help the Dow Corning-owned Hemlock Semiconductor Corp. expand. He also spearheaded local arrangements for an Army Corps of Engineers project to create a disposal site for dredged material from the dioxin-contaminated Saginaw River watershed.

“I’ve been living this stuff for 30 years,” Koski said of the ins and outs of wetlands policy. “I was a big advocate of keeping [regulation] local and raising more fees to pay for it,” the commissioner said, explaining that about 10 years ago, he changed his mind when as a consultant for the Saginaw Homebuilders Association, he was unable to work out definitions for the terms “stream” and “contiguous” with DEQ regulators.

“It was becoming very evident to me in following the laws that the laws weren’t changing but the definitions and the way they were applying the laws was changing and the state was regulating more stringently,” he said. “Their definition of stream is anything with a bed and a bank that shows continuous occurrence. … It can be any ditch they want it to be.”

State wetlands regulations have been problematic in the course of his work with the Army Corps for the dredging disposal site, Koski said.

State law classified the farmland Koski purchased for the dredgings dump as a wetland. “I had to spend $1.2 million to buy wetland to mitigate this … plus five years to have it turned back into wetland,” Koski said of the requirements to create new wetland when an existing one is displaced or destroyed.

In contrast, Koski said, the federal Clean Water Act classifies any piece of land that’s been farmed since 1985 continuously as “prior converted farmland” and does not fall under wetlands regulations.

Little Government Oversight Looms

Some critics of the plan to shift wetland regulation to the federal government worry that there will be little to no oversight. Koski said that based on his conversations with the Army Corps of Engineers, that is exactly what will happen.

“I was with [an Army Corps] colonel two weeks ago and he said: ‘We are not going to have as many people, but frankly we don’t regulate as much as they do.’”

All of the regulatory programs on inland lakes and streams should go back to federal government, Koski said. “That is what the DEQ and environmental groups are afraid of.”

And it all comes down to jobs. “We are trying to compete with other states for jobs. Everybody I’ve talked to who builds in other states and builds here is so frustrated with dealing with DEQ on these issues that they don’t want to build in Michigan.”

Dow Corning’s Hemlock Semiconductor facility, which produces polycrystalline silicon for solar panels, is a prime example of this tension, Koski said. “I am directly involved with [Hemlock] Semiconductor. They are so frustrated.”

Semiconductor’s engineers are frustrated with the state’s requirements for relocating county drains that run through the company property, he said.

“Does anybody disagree that it is a good thing to get an open ditch away from a chemical plant? I spent $2 million of Semiconductor’s money,” Koski said. “They wanted it moved, and I did it without a state permit.”

That was two years ago. Now, Koski said, he is in the middle of moving another drain for Hemlock, again without DEQ approval.

“I say sue me,” Koski said. “If they sue me they are suing [Hemlock] Semiconductor, and the governor doesn’t want to do that.”

Peg Bostwick, chief of the DEQ’s Wetlands, Lakes and Streams unit, disagrees with Koski’s interpretation of the law.

She said that several years ago her office “bent over backwards” to work with Hemlock as it tried to secure permits for a project that would have a large impact on a high quality wetland.

“Our people went out there and they were taken aback when they realized [the] county [was] doing work without permit from the state. There is certainly a violation of wetlands law,” she said of Koski’s actions for Hemlock. “Obviously we don’t want to run into these type of adversarial relationships. It’s not an issue of letting him or not — he never applied for a permit.”

Bostwick said the department is “still investigating and looking into” how to respond to Koski’s sidestepping of state regulation.

Under state law a person who “willfully or recklessly” violates wetland law more than once can be charged with a felony, fined up to $50,000 per day of violation, and sentenced to up to two years in jail.