Lawmakers send governor bill to deregulate construction over ephemeral streams
Horacio Romero of Toledo, Ohio looks at algae in Lake Erie at Maumee Bay State Park in Oregon, Ohio. Photo by Aaron P. Bernstein/Getty Images.
The Ohio General Assembly passed legislation Wednesday that relaxes regulations around the development of ephemeral streams, which flow only by way of rain and snowmelt.
There are more than 36,000 miles of ephemeral streams in Ohio, according to legislative testimony from the Ohio Environmental Protection Agency. They channel water into larger streams and can filter out contaminants like nitrogen and phosphorus, which cause algal blooms.
Under current Ohio law, developers must obtain a permit to dredge or fill in any ephemeral feature, according to analysis from the Legislative Service Commission. Environmentalists say these permits, often paired with requirements to mitigate any environmental damage, are a key means to protect Ohio’s waterways. Developers say they’re expensive and onerous.
House Bill 175 would remove these permitting requirements for “ephemeral features” that are not covered by EPA rules under the federal Clean Water Act of 1972.
The bill passed the House nearly along party lines. Two Republicans — Haraz Ghanbari and Reggie Stoltzfus — voted with Democrats in opposition. It cleared the Senate last month on party lines with Republicans in support.
Sponsoring Rep. Brett Hillyer, R-Uhrichsville, said the legislation is aimed to create more “orderly, cost effective and predictable” regulations for development in the state. Rep. Michael Sheehy, D-Toledo, said the legislation marks a step backward for Ohio protecting its natural, clean water.
“This measure will inevitably affect water quality downstream,” he said.
The question of whether the Clean Water Act includes ephemeral streams has bounced back and forth over the last three presidential administrations amid court fights and changeover in EPA leadership. The EPA of President Donald Trump’s administration finalized a rule in June 2020 excluding ephemeral streams from the Clean Water Act’s protections. That rule was recently blocked by a federal judge in Arizona, who found it deviated from the intent of the act without sufficient reasoning to back up the change.
President Joe Biden’s EPA has begun the process of revisiting the rule but doesn’t expect it to be finalized until 2023.
Ephemeral and intermittent streams comprise about 59% of all streams in the U.S., mostly in the Southwest, according to a 2008 EPA report.
Ohio lawmakers have pared down their bill significantly since it was introduced. In its original form, it would have explicitly removed ephemeral streams from the protection of Ohio’s water pollution control laws. It also would have allowed for the discharge of sewage or other pollutants into ephemeral streams.
The legislation that passed Wednesday, however, essentially ties Ohio’s protections of ephemeral streams to the federal Clean Water Act.
Political organizations representing the oil and gas and construction industries in Ohio testified in support of the bill in committee, arguing it would get rid of regulatory bureaucracy and expensive permits that can dampen development efforts.
Environmentalist organizations argued the legislation contradicts the whole point of H2Ohio, a $172 million-dollar effort to clean up Lake Erie. The streams, they say, are critical to addressing algae bloom on the lake given their ability to filter out phosphorus and nitrogen, which can run off land during storms.
The legislation now goes to Gov. Mike DeWine for his signature or veto. A DeWine spokesman said the governor is reviewing the legislation and didn’t offer any position.
Besides the environmental issues, the legislation will fail to protect the millions of Ohioans who rely on the streams for drinking water, according to the Ohio Environmental Council Action Fund, which called on DeWine for a veto.
“Dirty water legislation is dangerously close to becoming law in Ohio as HB 175 now heads to Governor DeWine’s desk,” said spokesman Pete Bucher. “We urge Governor DeWine to act in accordance with his strong stance of protecting Ohio waterways and veto this harmful bill.
The Ohio EPA declined to comment last week on the legislation. A spokesman said the agency is neutral on the bill.
The pool of people affected by the permitting process is small. According to fiscal analysis from the Legislative Service Commission, the Ohio EPA issues an average of less than 14 water quality certification permits per year. An Ohio EPA spokesman said Wednesday he couldn’t immediately offer information about typical permit costs.
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