This fall Ohio EPA Division of Surface Water (DSW) has been releasing a series of intertwined rule packages that govern streams and discharges to waterways. Some business groups have said that the packages represent the most significant overhaul of water regulations in thirty years.
To date, 3 out of 4 packages have been released:
- Antidegredation Rule
- Water Quality Standards
- Section 401 Water Quality Certification Rule
- Stream Mitigation Rule (to be released in early 2009)
No doubt the packages are highly technical and cover a myriad of issues. But what are the implications for businesses in Ohio?
Boiling down the packages, here are the major changes:
- Creation of a new State Water Quality Permit for impacts to streams
- Complete overhaul of mitigation requirements for stream impacts
- Comprehensive tightening of standards for discharges to water ways (will result in more stringent discharge permits for businesses)
- Standards for drainage ditch maintenance
- Phase out of open lake disposal for dredged sediment from ship channels by the Army Corps of Engineers
- Introduction of a nutrient standard for newly constructed or modified wastewater treatment plants
STATE WATER QUALITY PERMIT
I already discussed the new State Water Quality Permit in a prior post. I believe Ohio would be the first state in the Country to create a state permit for impacts to streams that are not covered by the Clean Water Act. The State is reacting to a series of Supreme Court decisions which have reduced federal jurisdiction over waterways and wetlands.
WASTEWATER DISCHARGE STANDARDS
Ohio EPA is proposing to tighten standards for some 135 chemicals. They are also proposing to revise the human health criteria applied to NPDES discharge permits. The more stringent standards will be incorporated into NPDES permits after they are renewed (NPDES permits have a 5 year life cycle). Depending on the business and the nature of their discharge, the tighter standards could result in significant upgrades to wastewater treatment plants.
The biggest question from business groups regarding the strengthening of water quality standards is….Why now? Many of the revised standards were part of U.S. EPA updates from 2000.
MITIGATION FOR STREAM IMPACTS
For wetland impacts, Ohio mitigation requirements are very straightforward and are set forth in rules. The ratios for required mitigation and the quality of wetland mitigation is all tied to the class of wetland impacted (Ohio classifies wetlands as either Class I, II or III).
Stream mitigation requirements are not straightforward. Ohio EPA’s stream mitigation requirements have been described by developers as a "black box." The fact is mitigation is decided on a case by case basis, and lack of consistency is a legitimate concern. To address this longstanding issue, Ohio EPA is attempting to clearly defined mitigation requirements for streams.
Each of the four packages contain some aspect that is relevant to stream mitigation requirements. However, until Ohio EPA releases the main rule package on stream mitigation requirements it will be difficult to see how the pieces fit together. However, certain aspects of the rules that have been release foreshadow what is coming:
- Primary Headwater Habitat Designation- Ohio EPA creates this new designation and creates three classes based on the quality of the stream. For lower classes, the focus of the designation is hydrology and not aquatic life. This sets up mitigation requirements. If you impact a Class I stream by moving or filling it, you will have to restore the hydrology lost as part of your mitigation.
- "Upland Drainage" and "Water Conveyance" Designations- applies to drainage ditches (or what Ohio EPA refers to as "historically channelized watercourses"). The purpose of these new designations for ditches is to encourage better management practices, such as natural stream design when performing maintenance on ditches.
- "No Net Loss" Principle Applied to Streams- A legal issue surrounds the amount of impacts that are allowed under antidegredation principles to streams versus wetlands. For wetlands, there has been a "no net loss" that actually allows destroying an entire wetland if its value is replaced through mitigation. There is an open legal question as to whether the same flexibility exists for streams. Ohio EPA is proposing to settle that issue by bringing the "no let loss" principle to streams.
A source of major controversy in Ohio has been poorly maintained drainage ditches (see the Ohio Environmental Council web page). Through mother nature’s influence over time, drainage ditches can become valuable headwater streams. The controversy occurs when a farmer or County engineer wants to dredge a ditch for drainage or flood control that has not been maintained for many years. Will the rules even allow them to perform that work if the stream has become a valuable resources, such as a warmwater habitat stream?
For the first time in Ohio, the Agency is proposing to require treatment standards for nutrients. Nutrients, such as phosphorus and nitrogen, are one of the most significant causes of water quality impacts in the State (U.S. EPA Nutrient Website for background). The Agency is proposing to take a step in the direction of regulating this pollutants by requiring treatment for nutrients as part of Best Available Demonstrated Control Technology (BADCT) that will apply to new wastewater treatment plants or modifications to the biological treatment process of an existing plant.