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Ohio could soon pass bill to deregulate development of ephemeral water streams

Lake Erie Algae
Posted at 9:00 AM, Apr 02, 2022
and last updated 2022-04-02 09:00:54-04

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

The Ohio legislature could soon pass a bill allowing for deregulating the development of “ephemeral streams” — natural flows of water that form after rain and snowmelt.

Ohio has an estimated 115,000 miles of primary headwater streams, according to legislative testimony from Ohio Environmental Protection Agency Director Laurie Stevenson, referring to the brooks and ravines that are the origin of most rivers. Of them, an estimated 36,400 miles are ephemeral streams. They channel water into larger streams and can filter out contaminants like nitrogen and phosphorus.

Current state law requires a permit to discharge, dredge or fill material into any ephemeral feature, according to analysis from the Legislative Service Commission. Environmentalists say this permit, which is sometimes paired with required environmental mitigation, is a key means to protect larger bodies of water that catch ephemeral flow.

Legislation passed by the House would eliminate this permitting and mitigation requirement, explicitly removing ephemeral features from regulation under Ohio water pollution control laws. An amended version the Senate passed Wednesday would essentially only allow the state to regulate ephemeral streams if they’re covered by the federal Clean Water Act.

The federal issue has been ping-ponged between presidential administrations. Then-President Donald Trump’s U.S. EPA reversed rules imposed by his predecessor, Barack Obama, that applied Clean Water Act protections to ephemeral streams. However, a federal court in Arizona vacated the Trump-era rule in August, which reverts the permitting process to a case-by-case review to determine if the ephemeral stream has a “significant nexus” to more traditional bodies of water. The EPA under current President Joe Biden is in the process of changing the rule once again.

To pass the Ohio bill, the House must either agree to the Senate’s changes or hash out the differences in a conference committee, before going to Gov. Mike DeWine.

Rep. Brett Hillyer, R-Uhrichsville, sponsored the legislation. Addressing lawmakers, he said the permitting process can run up costs for developers. He didn’t respond to a text message.

Various groups representing the construction industry spoke in support of the bill. Andrea Ashley, of the Associated General Contractors said the legislation would lessen confusion and “regulatory bureaucracy that can stymie construction and development.” Pat Jacomet of the Ohio Aggregates and Industrial Minerals Association did as well, saying regulating ephemeral streams produced uncertainty without providing any documented environmental benefits.

A handful of energy interest groups like the Ohio Coal Association and Ohio Oil and Gas Association joined an ad hoc coalition in support of the bill. The American Petroleum Institute didn’t offer public testimony but registered seven lobbyists on the bill. A spokesman said they registered to monitor the bill but didn’t take any position.

The introduced version would have allowed for the discharging sewage or other pollutants into an ephemeral stream, according to bill analysis from the Legislative Service Commission. This provision was removed from the bill, following written testimony from Ohio EPA Director Laurie Stevenson, who warned it could adversely affect drinking water.

An Ohio EPA spokesman said the agency is neutral on the Senate-passed version of the bill. He didn’t respond to an interview request with Stevenson or a question about the House-passed version.

The pool of people affected by the permitting process is small. According to fiscal analysis from the Legislative Service Commission, the Ohio EPA issues an average of less than 14 water quality certification permits per year.

Environmentalists alleged the new policy would essentially contradict the H2Ohio program, a $172 million-dollar Lake Erie cleanup effort. Rising temperatures from climate change could threaten to dry up more and more waterways, according to Cory Weisbrodt of The Nature Conservancy, underscoring the need for protection.

“Requiring mitigation for filling an ephemeral stream both encourages developers and others to design projects in ways that avoid impacting ephemeral streams, and when these impacts cannot be avoided, to mitigate them to minimize impacts to downstream water quality,” he said.

Protecting the ephemeral streams is critical to addressing algae blooms on Lake Erie, according to Robert Michaels of the Environmental Law and Policy Center, given the amount of phosphorus and nitrogen (found in many fertilizers) detected in rivers after storms.

Should the federal government opt against applying Clean Water Act protections to ephemeral streams, the Senate-passed litigation contains language establishing mitigation, monitoring and “best management practices” if ephemeral features are impacted by development. While Weisbrodt said he appreciated seeing some compromise, the mitigation components warrant explanation.

“Our water quality scientists and mitigation team were taken aback to see such detailed calculations and definitions in … the bill,” he said. “These standards have not been explained by any bill proponent, yet seem poised to become part of Ohio law and will affect our mitigation work in the future.”

The legislation returns to the House for consideration.