COLUMBUS, Ohio — Recently, the Ohio General Assembly passed and Gov. Mike DeWine signed into law legislation that eliminates protections to ephemeral water features that are not protected by the U.S. Clean Water Act.
House Bill 175 passed the House on a largely party-line vote, 61-35, and was approved by the Senate on a strictly party-line, 25-8, vote.
When HB 175 becomes fully effective July 21, polluting or eliminating these water features, many of them important to the health of protected waterways, will not be regulated. Anyone will be able to pollute them without a permit, unless that feature is regulated by federal rules.
Environmentalists across the state have indicated that this new law will hobble the progress accomplished by Gov. DeWine’s H2Ohio initiative that was designed to strategically address lingering serious water issues such as harmful algal blooms. In the 2020-21 biennium, $172 million in taxpayer money was invested to implement the H2Ohio initiative.
Ephemeral features are streams and wetlands that flow or pool in direct response to precipitation or melting of snow. Ephemeral features play a major role in managing floodwaters, filtering contaminants, recharging groundwater and providing habitat for a variety of plant and animal species. Destroying them will result in degrading other larger water bodies that are used for drinking water, fishing, swimming and recreation.
The federal Clean Water Act, as amended in 1972, is designed to protect water quality and regulate discharges to “Waters of the United States” (WOTUS) and “navigable waters.” Since its enactment, the definition of these two terms has been subject to litigation and perpetual political debate. The U.S. Environmental Protection Agency developed rules to define these two terms. Also, the U.S. Supreme Court dealt with several cases aimed at defining the scope of the Clean Water Act.
Obviously, the U.S. EPA rules and the Supreme Court decisions were not successful in defining the scope of regulated waters. Various administrations interpreted the Supreme Court decisions differently. In 2015, the U.S. EPA revised its WOTUS rules to adopt an approach that had been elaborated by the Supreme Court. However, in 2017, President Donald Trump signed an executive order directing U.S. EPA to rescind the 2015 rules and develop new rules based on another, less protective Supreme Court interpretation. These new rules, which became effective in June 2020, excluded ephemeral features from the scope of Clean Water Act protection, with the expectation that these waters would be regulated and protected by the states. However, the Joe Biden administration determined that these rules were not adequate and has initiated the process to revise them to expand the definition of WOTUS to include ephemeral features. These revisions are expected to be announced in 2023.
Considering the uncertainty and the perpetual changes on the federal level, Ohio should enact the necessary laws and regulations to protect our surface waters and the health of our citizens without tying Ohio’s protection of ephemeral features to the Clean Water Act’s requirements, which are intended to be national minimum requirements.
HB 175 defeats the purpose of H2Ohio and will result in reversing the progress we made in the last 50 years to clean Ohio’s streams and lakes to make them safe to be used for drinking water, fishing, swimming and other uses.
When he signed HB 175 into law, Gov. DeWine said in a statement that the bill “strikes a balance between protecting Ohio’s waterways and providing consistent state regulations to support economic development.” However, DeWine should have vetoed this bill, even at the risk of upsetting its industrial backers and with the possibility of a veto override by legislators.
George A. Elmaraghy spent most of his career in state government, serving among other roles as chief of the surface water division of the Ohio Environmental Protection Agency. He currently holds a presidential appointment as commissioner for the Ohio River Valley Water Sanitation Commission and is a member of the International Joint Commission Water Quality Board.
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