Another aspect of Governor Kasich’s controversial proposed legislation- Senate Bill 315- is to provide the legislative authority for Ohio EPA to take over Section 404 Clean Water Act permitting from the Army Corps of Engineers. Section 404 permits are needed prior to impacts to streams or wetlands within federal jurisdiction.
The bill itself doesn’t really do that much. It simply provides the authority to the Director of Ohio EPA to seek approval from U.S. EPA to assume responsibility for administering the Section 404 permitting program. The real important issues will be covered in the approval request itself.
As discussed below, the biggest issue Ohio EPA faces is to convince U.S. EPA in its request that it has sufficient resources to take over all the Section 404 permitting functions from the Army Corps.
What’s good about the proposal
Right now any developer that needs to impact wetlands or streams as part of their development will typically need to obtain two permit approvals. First, they must obtain a Section 401 Water Quality Certification from Ohio EPA. Second, if the wetland or stream is considered within federal jurisdiction, the developer must obtain a Section 404 permit from the Army Corps of Engineers.
The fact two permits will be needed won’t change if Ohio takes over the Section 404 program. However, developers will have the opportunity to go to one regulator to obtain both certifications. This will hopefully streamline the process.
Another major complication under the current structure is that Ohio is divided among four different Army Corp Districts- Pittsburgh, Buffalo, Louisville and Huntington. Each of the Districts has very different ways they process Section 404 permits. Therefore, another benefit of Ohio taking over the program would be greater consistency.
Approval Process Will Be Lengthy and Difficult
While there are good reasons for Ohio to take over Section 404 permitting, it will be a very lengthy and difficult process. First, Ohio EPA will have to show that it has sufficient resources to handle all the duties performed by the Army Corps. I have heard projections that this could take up to forty (40) additional staff in Ohio EPA wetland section.
This would be a very substantial increase in staff and the resources will be very difficult to come by. Unless, Ohio EPA is going to direct fees that are currently being used to support other programs, the Agency would need to seek a fee increase or new fee. While applicants may like the streamlined process, its unlikely they will want to pay substantially more for it.
If the Director was going to tap into current fees, such as the solid waste disposal fee, he will have to likely cut other programs. Also, the solid waste industry may object to use of the disposal fees to pay for significant new staff in program that doesn’t directly deal with management of solid waste.
Even if Ohio EPA clears the hurdle of demonstrating sufficient resources, it will still need to prove to U.S. EPA its has the legal authority to carry out the same functions as the Army Corps. The last time the State of Ohio tried to convince U.S. EPA of something similar it was transfer of the water permitting program (NDPES) for large farms to the Department of Agriculture. This process has taken years and involves only a transfer between two state agencies.
While the idea may sound good in theory, Ohio faces a significant uphill climb to make this proposal a reality.