Ohio bill to deregulate ephemeral features, federal rules uncertain

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An Ohio bill that would deregulate some ephemeral features has moved to Gov. Mike DeWine’s desk, with mixed reactions from conservation groups. House Bill 175 will remove ephemeral streams, but not wetlands, from regulation under the state’s water pollution control programs.

When the bill was introduced in the House in 2021, numerous conservation and environmental groups, along with the Ohio Environmental Protection Agency, opposed it, expressing concerns about how deregulating ephemeral features would affect Ohio’s water quality.

The bill, however, went through significant changes in the Senate that led several conservation groups and the Ohio EPA to switch from opposing the bill, to taking a neutral stance. Among them was an amendment that aligned Ohio’s rules with the federal Clean Water Act — so only ephemeral features that are not protected by federal rules would be deregulated.

The U.S. EPA is currently revisiting federal rules, after it repealed a Trump-era rule that deregulated ephemeral streams. If it decides to go back to protecting those streams, Ohio would do the same. But the history of that federal rule is defined by uncertainty and changes through multiple presidential administrations.

“One thing we did want to do was recognize that there was improvement,” said Cody Weisbrodt, government relations and policy associate for The Nature Conservancy in Ohio. The Nature Conservancy in Ohio opposed the original bill, but testified as an interested party on the final version. “We’re concerned because … we’re not really sure where the federal jurisdiction ends.”

Ephemeral streams

The bill defines ephemeral features as surface water flowing or pooling only as a result of precipitation, and excludes wetlands from that definition.

Conservation groups have said ephemeral streams are critical for water quality further downstream. While they aren’t always flowing, they connect to waters that are always flowing, and move water, nutrients and sediment downstream in watersheds. They also provide an important habitat for some wildlife species. Some estimates suggest there are 36,000 miles of ephemeral streams in Ohio.

“That’s what the science shows. There’s a significant impact, when you change an ephemeral stream, on the downstream water quality,” Weisbrodt said.

Uncertainty

The bill’s sponsor, Rep. Brett Hillyer, R-Uhrichsville, has said in testimony the bill would help relieve financial burdens for land developers by cutting costs associated with projects that affect ephemeral features.

It’s hard to say exactly how much of an impact the bill would have on developers. The bill’s supporters say it will create more certainty and cut down on costs. Fiscal notes for the bill show an average of less than 14 water quality certification applications each year include an ephemeral stream.

It’s also hard to say exactly what the environmental impact of the bill will be. The new version of the bill addresses a potential conflict the previous version could have created with federal rules on water quality. The U.S. EPA is currently in the process of revising the federal Navigable Waters Protection Rule that removed ephemeral streams from federal protection in 2020.

If the U.S. EPA chooses to regulate ephemeral streams again, the original version of the bill would have conflicted with that federal rule, and could have been found unconstitutional, since federal law takes precedence over state law. The newer and final version, however, aligns state protection with federal protection. But it’s not clear exactly what that protection will include, in the long run.

“My frustration comes from, we’ve got Congress that just won’t finish this and make a permanent decision on this, so presidential administrations flip back and forth,” said Matt Misicka, executive director of the Ohio Conservation Federation. The federation, a group of hunters, anglers and trappers who are focused on conservation, opposed the original bill, but is neutral on the current one.

Changes

The final version of the bill also specifies that even for unprotected ephemeral features, other sections of the revised code still apply — for example, it would still be illegal to dump pollutants into an ephemeral feature.

The bill provided more specific rules for mitigating impacts to ephemeral streams that are protected. Weisbrodt said it’s not yet clear to The Nature’s Conservancy’s mitigation team exactly how those new rules will affect mitigation efforts. The rules include specific calculations for mitigating temporary and permanent impacts to regulated ephemeral features.

The Stream and Wetlands Foundation, an Ohio-based nonprofit that works on stream and wetland mitigation projects, testified as a proponent of the final version of the bill, individually and as part of a coalition that included home builders and real estate associations, coal and oil and gas associations and the Ohio Chamber of Commerce.

“I know it’s not perfect … but I think it’s a really good compromise,” said Vince Messerly, of the Stream and Wetlands Foundation, in March 29 testimony, about the mitigation rules in the bill. He said these would be the first rules on stream mitigation codified in Ohio law.

Compromise

Multiple Ohio conservation groups and citizens remain opposed, but several are neutral on the final version on the bill. The Ohio EPA, which originally opposed the bill, also confirmed to Farm and Dairy it is now neutral.

The change last fall, before the bill left the House, that removed wetlands from the bill’s definition of ephemeral features, was a big improvement for the Ohio Conservation Federation and some other groups. The further changes in the Senate, and the Ohio EPA’s decision to be neutral on this version, are some of the other reasons the federation switched to a neutral stance.

“Bills always seem to start kind of with a one-side engagement by special interests, regardless of which side you’re on,” Misicka said. “These things are always about compromise.”

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Reporter Sarah Donaldson is a former 4-Her and a Mount Union graduate from Columbiana County, Ohio. She enjoys playing and writing music, cooking, and storytelling in many forms. She can be reached at 800-837-3419 or sarah@farmanddairy.com.

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