On December 17th, Ohio EPA re-issued a huge set of rules that impact industry, developers and the farming community. The surface water quality rule package includes interrelated sets of rules dealing with the following areas of regulation:
- Stream Mitigation– Contains an entirely new proposal for how to determine the amount of mitigation required for stream impacts.
- Section 401 Water Quality Certifications– Creates an entirely new permit for "isolated stream" (streams that fall outside of federal jurisdiction under Section 404 of the Clean Water Act).
- Antidegredation– sets standards for reviewing any impacts that would lower water quality.
- Water Quality Standards– establishes new standards for wastewater discharges and other water quality impacts.
The Agency had originally released three of the packages (all except stream mitigation) back in the fall of 2008 (Click here for 2008 post). In 2008, the rules were deemed highly controversial. Some industry groups described the package as the largest overhaul of water quality rules in thirty years.
Curious Timing for Re-Release
After a flurry of activity in 2008, the rules were essentially shelved for almost two years. Ohio EPA made the decision to try and move forward with some of the less controversial components independently.
Now, the entire package is being re-released with the stream mitigation proposal included. The Agency has established a public comment deadline of March 8, 2011.
The Agency’s decision to release these rules in late December a few weeks after the election and a few weeks prior to Governor Kasich being sworn in can only be described as curious. Following the election, Director Korleski submitted his resignation and Governor Kasich has yet to announce a new Director of Ohio EPA. It is quite possible a new Director could not be named until after March 8, 2011.
Any new Director will almost certainly want to review, in detail, this massive rule package and understand the issues. Given this uncertainty why release the rule package now and set an aggressive deadline for public comments? In my mind, it only sets the stage for the rules to be pulled once again to allow for complete analysis by the new leadership team.