ANTIDEGRADATION PROTECTIONS
Ohio Administrative Code 3745-1-54
Written and reviewed by Ray Stewart and Mick Micacchion
An ‘Interested Party Review’ has been issued by the Ohio Environmental Protection Agency (OEPA) for the draft revision in Ohio Administrative Code (OAC). Specifically, there is a proposed rule review issued by the OEPA Division of Surface Water OAC Chapter3745-1-54 which addresses antidegradation protections and review procedures for wetlands.
The OEPA has long regulated impacts to Ohio’s wetlands through a permitting process as authorized by section 401 of the Clean Water Act. The 401 certification is designed to protect water quality including the physical, chemical and biological integrity of waters. The Wetland Antidegradation Rule, which was enacted in 1998, asserts the states authority to place wetlands in categories based on their quality and ecosystem processes the are performing, and to use those classifications to regulate impacts, dredging and filling, and other discharges of pollutants to wetlands. Category 1 wetlands provide minimal, category 2 wetlands moderate, and category 3 wetlands superior ecological services and habitat values. In this way the rule sets up a tiered review process. However, the priority, for all categories, is first to avoid impacts. If unavoidable, then the impact is to be minimized and/or mitigated. The mitigation process establishes new or restored wetlands in compensation for those impacted wetlands. This rule describes the methods by which the OEPA manages this process based on the three antidegradation tiers.
When rules come up for review interested parties are invited to comment on the changes that are proposed. This is an opportunity to assure that Ohio’s wetlands receive the highest level of protection that these standards can provide. We must also be vigilant that proposed changes do not create loop-holes otherwise damage protections that are already in place.
There are many minor edits throughout the draft which are mainly cosmetic. There is a major and substantive change in Paragraph (E)(1)(a). Previously compensatory mitigation on site (permittee-responsible) was preferred. This practice put the highest priority on construction of a wetland on a development site where an existing wetland was being impacted. The advantage would presumably be that the wetland functions would simply be transplanted locally, providing the biology, hydrology and chemical services within the watershed that the development was impacting.
Lower priority would go to mitigation off site or with purchase of credits from a mitigation bank. The proposed change reverses these priorities. The draft revision now specifies the preferred order as (1) mitigation bank, (2) an in-lieu-fee program, (3) permittee-responsible mitigation.
Although the draft revision does not explain why this change should be adopted, there may be some justification. Mitigation in general has a poor track-record here in Ohio and across the country. Permittee-responsible, on site mitigation has been especially egregious with success rates in Ohio studies below 20%, and most recently (2011 study) as low as 13%. On site wetland construction has several inherent obstacles. Space may be limited. Soils and hydrology may not be appropriate. Monitoring may be inadequate. A large, professionally managed off-site mitigation project or mitigation bank could take advantage of more desirable site selection and oversight, although banking based on the same 2011 study, only has a 30% success rate in Ohio. And, since Ohio has just begun to utilize an in-lieu fee program, this other option needs to be included in the rules.
Getting in to the fine detail of this draft, Paragraph (E)(1)(a)(iv) suddenly flips the priority back to permittee-responsible mitigation when category 2 or 3 wetlands, greater than 3 acres, are impacted. Under these circumstances, depending on the compensation ratio, 6 – 13.5 acres of restoration work could be required.
In our opinion, it makes no sense to put the restoration priority back on the permittee. Since the permittee-responsible option is largely seen as a failure historically, there is no reason to expect better results at an arbitrary threshold of 3 or more acres. The only reasonable use of permittee-responsible mitigation is when sufficient space and suitable soils lend themselves to wetland restoration. This advantage may be amplified if there are no other options in the immediate watershed. As the third priority stated in Paragraph (E)(1)(a) no other mention is needed. This rule is better without this confusing flip in Paragraph (E)(1)(a)(iv).
Written and reviewed by Ray Stewart and Mick Micacchion
An ‘Interested Party Review’ has been issued by the Ohio Environmental Protection Agency (OEPA) for the draft revision in Ohio Administrative Code (OAC). Specifically, there is a proposed rule review issued by the OEPA Division of Surface Water OAC Chapter3745-1-54 which addresses antidegradation protections and review procedures for wetlands.
The OEPA has long regulated impacts to Ohio’s wetlands through a permitting process as authorized by section 401 of the Clean Water Act. The 401 certification is designed to protect water quality including the physical, chemical and biological integrity of waters. The Wetland Antidegradation Rule, which was enacted in 1998, asserts the states authority to place wetlands in categories based on their quality and ecosystem processes the are performing, and to use those classifications to regulate impacts, dredging and filling, and other discharges of pollutants to wetlands. Category 1 wetlands provide minimal, category 2 wetlands moderate, and category 3 wetlands superior ecological services and habitat values. In this way the rule sets up a tiered review process. However, the priority, for all categories, is first to avoid impacts. If unavoidable, then the impact is to be minimized and/or mitigated. The mitigation process establishes new or restored wetlands in compensation for those impacted wetlands. This rule describes the methods by which the OEPA manages this process based on the three antidegradation tiers.
When rules come up for review interested parties are invited to comment on the changes that are proposed. This is an opportunity to assure that Ohio’s wetlands receive the highest level of protection that these standards can provide. We must also be vigilant that proposed changes do not create loop-holes otherwise damage protections that are already in place.
There are many minor edits throughout the draft which are mainly cosmetic. There is a major and substantive change in Paragraph (E)(1)(a). Previously compensatory mitigation on site (permittee-responsible) was preferred. This practice put the highest priority on construction of a wetland on a development site where an existing wetland was being impacted. The advantage would presumably be that the wetland functions would simply be transplanted locally, providing the biology, hydrology and chemical services within the watershed that the development was impacting.
Lower priority would go to mitigation off site or with purchase of credits from a mitigation bank. The proposed change reverses these priorities. The draft revision now specifies the preferred order as (1) mitigation bank, (2) an in-lieu-fee program, (3) permittee-responsible mitigation.
Although the draft revision does not explain why this change should be adopted, there may be some justification. Mitigation in general has a poor track-record here in Ohio and across the country. Permittee-responsible, on site mitigation has been especially egregious with success rates in Ohio studies below 20%, and most recently (2011 study) as low as 13%. On site wetland construction has several inherent obstacles. Space may be limited. Soils and hydrology may not be appropriate. Monitoring may be inadequate. A large, professionally managed off-site mitigation project or mitigation bank could take advantage of more desirable site selection and oversight, although banking based on the same 2011 study, only has a 30% success rate in Ohio. And, since Ohio has just begun to utilize an in-lieu fee program, this other option needs to be included in the rules.
Getting in to the fine detail of this draft, Paragraph (E)(1)(a)(iv) suddenly flips the priority back to permittee-responsible mitigation when category 2 or 3 wetlands, greater than 3 acres, are impacted. Under these circumstances, depending on the compensation ratio, 6 – 13.5 acres of restoration work could be required.
In our opinion, it makes no sense to put the restoration priority back on the permittee. Since the permittee-responsible option is largely seen as a failure historically, there is no reason to expect better results at an arbitrary threshold of 3 or more acres. The only reasonable use of permittee-responsible mitigation is when sufficient space and suitable soils lend themselves to wetland restoration. This advantage may be amplified if there are no other options in the immediate watershed. As the third priority stated in Paragraph (E)(1)(a) no other mention is needed. This rule is better without this confusing flip in Paragraph (E)(1)(a)(iv).