Ohio’s Response to new WOTUS Rule – General Permit for Ephemeral Streams
Update June 29, 2020: On June 25, 2020, Ohio EPA issued the Ohio General Permit for Filling Category 1 and Category 2 Isolated Wetlands and Ephemeral Streams. For additional information on Ohio EPA’s interpretation of the new general permit, see Ohio EPA’s responses to comments on the draft general permit on pages 13-56 of the linked document.
On May 8, 2020, Ohio EPA issued a public notice for a new general permit, titled Ohio General Permit for Filling Category 1 and Category 2 Isolated Wetlands and Ephemeral Streams. The purpose of the General Permit, as set forth in the permit itself and in outreach to stakeholders, is to fill gaps in the regulatory landscape following the issuance of the Navigable Waters Protection Rule. The General Permit covers “the filling of, and the discharge of dredged material into, Category 1 and Category 2 isolated wetlands, of up to a total of one-half acre or less” and “the filling of, and the discharge of dredged material into ephemeral streams determined to not be waters of the United States and not subject to Section 404 or 401 of the Clean Water Act.” Many of these activities would be considered non-jurisdictional under the Navigable Waters Protection Rule, as detailed below.
On April 21, 2020, the U.S. Environmental Protection Agency (US EPA) and the Army Corps of Engineers published to the Federal Register their revised rule defining which waterbodies are subject to federal jurisdiction. The Navigable Waters Protection Rule, a replacement for the Obama Administration’s Clean Water Rule, seeks to define what constitutes “waters of the United States,” the term within the Clean Water Act that controls permitting and regulatory requirements for waterbodies that fall within that definition. The published rule is set to become final on June 22, 2020.
Notably, the Navigable Waters Protection Rule details 12 categories of exclusions, or features, that are not “waters of the United States.” Among these are features that only contain water in direct response to rainfall (e.g., ephemeral features) and isolated wetlands (i.e., wetlands that do not abut, are separated by more than a natural berm from, are not inundated by flooding in a typical year from and do not have a direct hydrologic surface connection in a typical year to a jurisdictional non-wetland water). Paragraph (b)(3) of the final rule excludes these ephemeral features, including streams, swales, gullies, rills and pools. Under the final rule, ephemeral features are not jurisdictional waters and do not become jurisdictional even if they maintain jurisdiction of relatively permanent upstream waters by conveying surface water from those waters to downstream jurisdictional waters in a typical year.
In response to the jurisdictional exclusion of ephemeral features in the Navigable Waters Protection Rule, Ohio EPA began informing stakeholders at the end of April 2020 that it planned to issue the General Permit to cover impacts to ephemeral streams Category 1 and 2 isolated wetlands within Ohio that are no longer found “jurisdictional” under the Clean Water Act as a result of the revisions in the new Navigable Waters Protection Rule.
The General Permit sets forth Ohio EPA’s authority to issue such General Permit under Ohio Revised Code Chapter 6111, which Ohio EPA believes grants it the authority to regulate discharges to these waterbodies in Ohio, regardless of how they are now regarded under the Clean Water Act (pursuant to the Navigable Waters Protection Rule).
Ohio EPA first previewed its position as to ephemeral streams and its regulatory authority in a 2017 letter commenting upon the proposed changes to the Clean Water Rule. At that time, Ohio EPA stated its concern related to the exclusion of ephemeral features, stating that “only those streams considered to be perennial would be considered waters of the US . . . leav[ing] intermittent and ephemeral streams without federal protection . . . [and leaving] [e]ach state [to] then have to determine how to regulate those streams.” Regarding its regulatory ability to then regulate those water bodies, Ohio EPA stated as follows:
Due to the broad definition and prohibitions in ORC 6111, ephemeral and intermittent streams would be protected, but there would be no permitting mechanism to allow the placement of dredge and fill material similar to the 404/401 permitting mechanism. The 401 program in Ohio is dependent on the 404 process, so if certain streams were considered not a water of the US {non-jurisdictional), then a 401 WQC could not be issued for placement of dredge and fill material.
Ohio EPA’s public notice of the General Permit indicates its intent to move forward with the permitting process, as outlined in its 2017 comments to US EPA. On a call with stakeholders this week, Ohio EPA signaled remaining uncertainty related to the anticipated litigation associated with the Navigable Waters Protection Rule. As of the beginning of this month, 17 states had sued to block the Navigable Waters Protection Rule from going into effect. The outcome of that nationwide litigation could potentially impact the General Permit and the rule itself.
Litigation aside, the timing associated with the public notice of the General Permit would have the General Permit issuing most likely concurrently with the June 22, 2020, date when the Navigable Waters Protection Rule is set to take effect (based upon its notice date in the Federal Register). Ohio EPA will hold stakeholder informational sessions on May 11, 2020, and May 18, 2020.
