Bill to deregulate rivers would facilitate development, opponents say threatens drinking water

HB 175 is unnecessary and would have adverse effects on the environment, say opponents. This will weaken protections for drinking water sources statewide when more protections and tighter enforcement are needed, said Eric Sauer of Greater Dayton Partners for the Environment. The group sent written testimony to the Ohio House Agriculture and Conservation Committee expressing concerns about HB 175.

Removing buffers provided by ephemeral streams will allow the discharge of sewage, brine, coal mining wastes and chemical toxins into rivers and groundwater, he said.

“That’s really where the problem is, and especially here in the Miami Valley, with the aquifer that we depend on so much for our drinking water, and everything in between,” said Sauer, who is also responsible for planning at Five Rivers MetroParks. “Any reduction in protection to that is a risk to our livelihoods and our ability to have good drinking water.”

What are the current rules?

The Ohio EPA Ephemeral Flow Act was implemented in June 2020 and is in effect for five years. The state put it in place after a US law deregulating ephemeral flows at the federal level was enacted in January of the same year.

Ohio law requires developers to submit a mitigation plan and permit application to the state’s EPA to build on land with ephemeral waterways. They must replace the watercourses they fill and demonstrate that the project will lead to a marked improvement in water quality. The proponent must also agree to monitor the mitigation project for up to five years after construction.

The current rules do not apply to agricultural development.

Ephemeral streams are key parts of the watershed, said Abinash Agrawal, groundwater expert and professor of environmental science at Wright Sate University. They have key functions in regulating the natural cycles of food and nutrients, and they promote biodiversity and healthy aquatic life. Ephemeral fluxes are effective in terms of degrading many pollutants, he said, noting that he was opposed to HB 175.

According to the Ohio EPA, there are approximately 115,206 miles of primary headwaters statewide. Of that total, about 36,405 miles are ephemeral streams, the agency said. Their advantages and functions include:

  • providing storage capacity and carrying the flow of water during rain.
  • capture and filter contaminants.
  • provide materials for small aquatic animals and create habitat areas.
  • recharge the water tables.
  • lower downstream water temperature.
  • prevent flash floods and allow rapid drainage after storms.

Currently, 36 states do not regulate ephemeral flows. Neighboring Indiana joined this group in April, when it deregulated them.

HB 175

HB 175 was introduced by State Representative Brett Hudson Hillyer, R-Uhrichsville, and has five co-sponsors, including State Representative Tom Young, R – Washington Twp., Whose district includes Miamisburg, West Carrollton and Moraine. Its fifth and most recent commission hearing was in June. Officials from the House’s Agriculture and Conservation Committee did not say whether another hearing would take place or when they would vote on the measure.

Calls to Hillyer and Young’s offices were not returned.

Committee chairman, State Representative J. Kyle Koehler, R-Springfield, held meetings with interested parties over the summer to find ways to address concerns about HB 175, a- he declared. Based on those conversations, his office came up with solutions they will now consider as the House is back in session for the fall, he said. Koehler’s office declined to say what these remedies are because they are still in discussions with Hillyer and other colleagues.

The bill is based on the federal law on the deregulation of ephemeral flows. But a judge overturned it in August, and the impact of that decision on the HB 175 is unclear.

“In light of this court ruling, I am working with interested parties and the sponsor of the bill to determine if this changes the scope of the bill,” Koehler said. “As the conversations about HB 175 continue, this will be something to keep in mind.”

Deregulation of ephemeral flows would have many negative effects on the environment, according to opponents. Removing safeguards under current law will make it easier to contaminate groundwater and surface water such as the Little Miami or Great Miami rivers, they say. The majority of Ohio communities get their drinking water from surface water, while most Miami Valley communities depend on the Great Miami Buried Valley Aquifer.

HB 175 would also make it harder for urban areas to meet their Ohio Clean Water Act goals, said Anthony Sasson, senior research associate at the Midwest Biodiversity Institute and University of Wittenberg graduate. He testified before the Ohio House Agriculture and Conservation Committee as a member of the Columbus-based Darby Creek Association.

But supporters have countered that ephemeral streams have little environmental significance, and those who oppose HB 175 are unrealistic. The law protecting waterways hinders development in general, for example, including the housing shortage in Ohio, said Squillace, executive vice president of the Ohio Home Builders Association.

In addition, the mandate to mitigate ephemeral flows tends to strain land development budgets and add barriers that can force developers to cancel projects, he said. Right now, federal, state and local regulations make up about 25% of the cost of a home, he added.

“A lot of times environmental laws, when it comes to water and development sites, can be very, very expensive,” Squillace said. “That doesn’t mean they’re all unwarranted, but if there’s a major impact and the way a water body is going to be managed, it has to be reasonable, otherwise we could essentially stop all development altogether, or modify it to a point where it would no longer be feasible.

A better option is for ephemeral streams to fall under stormwater regulations, which HB 175 is proposing, and that would remove many of the barriers, according to Squillace and other supporters. Because there is little difference between stormwater on a site and what might collect in an ephemeral stream, it has been misclassified as rivers and streams, he said.

“The unscientific definition of an ephemeral flow is a flow that doesn’t start anywhere and goes nowhere,” Squillace said. “It just collects water.”

Richard Warner, professor emeritus of biosystems and agricultural engineering at the University of Kentucky, also favors stormwater systems as an alternative to ephemeral streams. The functions of most ephemeral streams are negative due to their negative environmental consequences on streams and water bodies further downstream, he said in written testimony to the Agriculture and Conservation Committee.

The solution isn’t to replace and expand short-lived traffic lanes, as the Ohio EPA requires, said Warner, who is also a hydrologist and has taught in the UK for more than 40 years. Today, the company benefits from professionally designed stormwater management best practices to replace unstable ephemeral canals and ravines encountered at development sites, he said.

Whether it is surface mining regulated under the Ohio Mining and Reclamation Act or development and construction activities regulated by the General Construction Activity Permit of the Ohio EPA surface water runoff events are managed to reduce flooding and erosion and control sediment, ”he said.

Agrawal disagrees with Squillace and Warner. Ephemeral flows are very different, he said. They allow water to seep directly into the soil so that pollutants naturally break down in the soil. Stormwater systems are artificially designed and allow pollutants to build up, he said. All water and pollutants such as nutrients, sediment, and other urban toxins that are diverted through stormwater pipes to a nearby body of water tend to degrade water quality and negatively affect water quality. aquatic life, said Agrawal, who has studied the area’s surface. and groundwater for over 25 years.

Retention ponds and stormwater systems are just not practical, said Sasson, who has worked in environmental science for more than 40 years. They must be maintained perpetually, he said

Stormwater systems and retention ponds can also cause downstream erosion that can destroy trees and other plants that act as buffers for private property and surface water, Sauer said.

Opponents of HB 175 argue the bill is unnecessary and that the long-term effects of removing regulatory oversight will result in significant degradation of Ohio waterways, said Laurie A. Stevenson, director from the Ohio EPA, to the House committee in May.

“The mission of the Ohio EPA is to oversee the protection of Ohio’s natural resources,” she said. “Throughout the ephemeral flow general permit development process, the Ohio EPA has attempted to strike a balance between a reasonable permit approach that protects human health and the environment, while allowing projects to move forward. efficient and flexible way. “

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