On September 12, 2008, Ohio EPA issued proposed rules that would require a new permit, called a "state water quality permit", for all dredge or fill impacts to non-federally regulated streams. Ohio may be the first state in the country to try and expand state stream permit requirements in reaction to recent U.S. Supreme Court decisions limiting the coverage of the Clean Water Act. As discussed below, Ohio’s effort will be controversial.
The Supreme Court in Rapanos and SWANCC limited federal jurisdiction of the nation’s waterways based upon its interpretation of the Clean Water Act’s trigger for jurisdiction- "Navigable Waters". In a prior post (Narrowing Federal Jurisdiction Over Waterways), I discussed the pressure mounting on States to react to federal court decisions which leave many waterways unprotected.
Currently, Ohio EPA only requires a permit (401 permit) to fill or dredge a stream if the stream is under federal jurisdiction. No permit is required if a stream is considered a state waterway but not a federal waterway.
In the past this approach didn’t matter much because the Army Corps had a very expansive interpretation of federal waterways. However, with the federal authority shrinking based upon a flurry of recent federal court decisions, the State felt it could no longer allow more and more streams to go unprotected. In reaction, they have proposed a new rule that would require a permit for dredge or fill activity on any Ohio waterway, defined as "waters of the state" under Ohio Revised Code 6111.01(H).
While Ohio EPA’s action is understandable, after reviewing the rule, the Agency may be overcompensating. The definition of a "water of state" is quite expansive under O.R.C. 6111.01(H), it includes:
"…all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters."
I can see the lobbyists now, holding up pictures of a small puddle and arguing that Ohio EPA would require a permit for putting a few shovels of dirt in the hole. Only problem is there is not much in the rule to refute this claim from a purely legal perspective. The rule does not contain an exemption from permit requirements for small water bodies or deminimis impacts.
In my experience the Agency is typically not persuasive when it argue "just trust us" to apply the regulation fairly. As a result, there is no doubt this rule package will be very controversial.
Other issues with the package include the following:
- Same Level Review for All Impacts- While flawed, Ohio’s isolated wetland permit requirements appropriately tries to match the level of review required with the amount/severity of impact. The proposed rule makes no such effort. All impacts are required to submit the same amount of technical information as part of their application. Also, all projects will be reviewed within 180 days, expedited review requirements for smaller projects is not included in the rule.
- Drainage Ditches- Who can clean out a ditch and when has been a controversial issue in Ohio for some time. The proposed rule would put significant limitations on when ditches can be cleaned out for purposes of flood control or drainage.
- Clean Fill Materials- The rule limits fill to material "free from toxic contaminants in other than trace quantities." While this limitation often appears in 401 permits, it has always been vague. The rule adds no clarity to what is considered "trace quantities." For instance, arsenic is naturally occurring in most Ohio soils. Couldn’t this limit be viewed to prohibit use of even typical Ohio farm soil as fill?
- All Permit Applicants Will Have to Wait- The rule requires every applicant provide a copy of a determination letter from the Army Corps of Engineers as to whether the waters to be impacted are within federal jurisdiction. Shouldn’t some waters be just obviously not within federal jurisdiction? This requirement is problematic because the Army Corps has been very slow to issue jurisdictional determinations.
- Ohio EPA Guidance Elevated to Legal Requirements- The rule requires all applicants evaluate the quality of streams in accordance with a series of technical guidance developed by Ohio EPA. While these guidance documents have been used for years in permit reviews, it certainly will be controversial to make them mandatory.
Comments on the rule package are currently due October 27, 2008. However, business associations are already requesting Ohio EPA allow for more extensive public involvement in the development of the rules.
(Photo: flickr, heather0174)