A recently introduced bill in the Ohio House aims to deregulate ephemeral waters, following changes at a federal level last year.
The bill covers “ephemeral features”: streams, wetlands, ponds and other waters that don’t have water year round and mainly exist after precipitation, like rain or snow.
Under the Navigable Waters Protection Rule, these features were removed from federal protection. House Bill 175 would do the same at the state level.
Some farmers and farming groups have supported the federal rule, including the American Farm Bureau Federation, which said it provides clarity for farmers and draws clearer lines between federal and state jurisdiction.
But environmental groups in several states have challenged the rule, which went into effect in 2020, in courts. And some scientists have argued that removing protection from ephemeral streams is dangerous for water quality.
“We are in a time right now where Ohio is sort of a poster child for some water challenges,” said Mažeika Sullivan, director of the Schiermeier Olentangy River Wetland Research Park, at Ohio State University. “We have a lot of challenges that we’re facing, so we need to be very attentive and intentional … So, this is absolutely not the time to be removing protections.”
Significance
While ephemeral waters are not always flowing, they have a significant impact on watersheds as a whole, Sullivan said.
Ephemeral streams have a bed, a bank and a connection to streams that are always flowing. They move water, nutrients and sediment. Wildlife, including some birds and terrestrial wildlife, depend on them for habitats. Wetlands are also important as habitats and for filtering nutrients.
Like adrenaline or insulin production in the human body, ephemeral features are active only when they are needed.
“It doesn’t mean it’s not important because it only happens occasionally,” Sullivan said. “Not protecting them is highly problematic.”
One estimate listed in a June 2020 Ohio Environmental Protection Agency press release suggests there are more than 36,000 miles of ephemeral streams in Ohio. While damage to one ephemeral stream might not have a major effect, damage to many ephemeral features across the state would have cumulative effects, he said.
“This is a big deal,” Sullivan said. “The logic for this bill being introduced … is highly flawed. The science is telling us in so many ways that removing protection contradicts what we know about how they function and how important they are.”
Unprotected
An Ohio Legislative Service Commission analysis of House Bill 175 specified that under the bill, the Ohio Environmental Protection Agency would not have to issue permits for impacts to ephemeral features, and discharging sewage and other pollutants into ephemeral streams would not be a prohibited act.
Some of the common activities that impact these waters are development, road building, surface mining, pipelines, bank stabilization and some farming activities. For the most part, Sullivan said, things like ditches on farms and farm ponds are not typically regulated, though major rivers running through a farm would be.
“I think there’s a bit of a … narrative that’s out there that all these streams are regulated, and these little ditches in farms,” he said. “Typically, that’s not the case.”
Impacts
In testimony for the bill March 23, Rep. Brett Hudson Hillyer (R-Uhrichsville), who sponsored the bill, said the current requirement to replace or create additional ephemeral streams, when streams are impacted by land development, can increase water flow of streams during rain and lead to problems with downstream flooding and erosion, among other things.
Hillyer suggested that instead, the Ohio EPA should encourage land developers to use water storage mechanisms or best management practices so watersheds can store more water during rain events and release that water more slowly back into streams.
A spokesperson for Ohio EPA said the agency is reviewing the bill internally and looks forward to engaging with the bill’s sponsor on the topic.
Sullivan said projects to offset impact to streams and wetlands can be effective, but that is context dependent.
“Ideally, we don’t want to be messing with what nature has provided us,” he said. “I understand there has to be a balance.”
Hillyer did not respond to a request for comment from Farm and Dairy.
Reasons
In addition to saying the bill would match federal rules, Hillyer cited the costs of fees associated with regulations on ephemeral streams, saying these could quickly add up to $10,000-40,000 for a project.
During the hearing, Rep. Juanita Brent (D-Cleveland) questioned how deregulating waterways would benefit Ohio, considering the state’s history of water quality challenges. She argued the bill gets rid of environmental regulations without providing a plan for new regulations to protect Ohio’s water.
Hillyer argued that by reducing costs for projects, the state can open more opportunities for land developers to offset impacts from their projects. He said he hopes to see more emphasis on natural filtration, rather than adding or replacing ephemeral streams.
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