NATIONAL WETLANDS PERMITS
MODIFICATIONS TO THE SECTION 401 WATER QUALITY CERTIFICATION
Ohio Environmental Protection Agency -DSW
Attention: Permits Processing Unit
P.O. Box 1049
Columbus, Ohio 43216-1049
RE: Comments on the proposed Modifications to the Section 401 Water Quality Certification of the NWPs - Ohio Wetlands Association
Ohio EPA is considering modifying the Clean Water Act (CWA) Section 401 Water Quality Certification it issued for the CWA Section 404 Nationwide Permits (NWPs) in 2012. The current certification does not expire until 2017 but Ohio EPA has decided to reopen and modify some of the conditions and nationwide permits that regulate the activities of some special interests, primarily coal mining. It appears obvious that these proposed changes are being put forward at the request of those industries. Why Ohio EPA is entertaining energy industry desired modifications is questionable. Citizens of Ohio have to wonder why Ohio EPA is willing to make these changes, putting surface water resources in peril, and providing no apparent benefits for most Ohioans.
The NWPs proposed for modification are 12 -Utility Line Activities, 14 - Linear Transportation Projects, 21 -Surface Coal Mining Activities, 49 - Coal Remining Activities, and 50 - Underground Coal Mining Activities. The NWPs dealing with coal mining, 21, 49, and 50 were denied in the 2012 Section 401 Water Quality Certification[OS1] . Ohio EPA now intends to certify them and allow substantially large impacts to occur using the NWPS. It’s interesting that the three NWPs that deal with coal mining activities, and were denied in 2012, are now proposed to be certified with limited restrictions.
Historically, NWP 49 as used by the Army Corps of Engineers (once they receive an individual certification from Ohio EPA) has been limited to formerly mined areas. Even under that restriction there was no allowance for the amount of recovery and restoration that had occurred since the resources were last mined. It’s as though setting back the clock to the time before restoration efforts was not a degradation. However, the new certification would allow a project to be authorized under NWP 49 as remining even if up to 40 percent of the area slated for impacts had not previously been impacted (virgin) by surface coal mining activities. Clearly, this provision is meant only to please the coal industry and does not meet the definition of the activity, Coal Remining Activities, that NWP 49 was established to cover. It should not be allowed.
For NWPs 12 and 14 the various thresholds have been raised, that would require an individual Section 401 Water Quality Certification, to allow more activities to occur than are currently acceptable under these NWPs. In particular, all activities associated with maintenance have no limits on the amount of impacts that can occur to high quality resources. This carte blanch treatment is totally unacceptable when it comes to NWP authorization which are aimed at activities that collectively only result in minimal environmental impacts.
Additionally, some of the general conditions of the certification would be relaxed to allow more activities to be authorized under the NWPs. One provision proposes to do away with the primary headwater habitat assessment methods for determining the quality of headwater streams being impacted. This one provision has gathered so much interest that there have been separate stakeholder meetings. The most recent of those stakeholder meetings was held in Columbus on Feb. 3.
Supposedly in response to the process, Ohio EPA is now suggesting that only undesignated headwater streams that are upstream of “high quality waters” should be exempted from coverage under NWPs. “High quality waters” are defined by Ohio EPA as streams with Cold Water Habitat (CWH), Exceptional Warmwater Habitat (EWH) and Seasonal Salmonid Habitat (SSH) aquatic life uses, or Superior High Quality Waters and Outstanding State Waters.
While this may be protective of water quality in the watersheds of “high quality waters” it means elsewhere it will be open season on undesignated headwater streams as all their protections are removed. There[OS2] are no protections for the headwaters of Warmwater Habitat stream watersheds, which are systems of “Fair” to “Good” ecological condition, and are in compliance with the Clean Water Act as representing an acceptable level of water quality. We can be sure the quality of the downstream water bodies, in these watersheds which are not considered “high quality waters”, will further degrade. This approach definitely contradicts the Clean Water Act’s definition of “existing use” and will allow the elimination of large numbers of undesignated headwater streams, many of which may be of high quality, with no assessments of their ecological condition, and no mitigation for their losses.
Further, this fosters a system of winners and losers. “High quality waters” are protected from impacts to their tributary streams in their headwaters, regardless of their condition. However, lesser quality streams can suffer an unregulated amount of accumulated impacts to their undesignated headwater streams over time greatly reducing the water quality of the watershed. Even a high quality, but undesignated, headwater stream, in a less than high quality watershed, can be destroyed under this provision in the proposed modification to the NWPs certification. This is a poor way of managing our valuable aquatic resources and runs counter to the goals of the Clean Water Act.
The general condition for headwater assessments also treats all streams with a watershed of <1mi2 as though there is no potential for them to obtain other uses than those of primary headwater habitat. This is just not the case and studies have shown that streams with watersheds as small as 0.5 mi2 have been able to attain aquatic life uses including Coldwater Habitat, Exceptional Warmwater Habitat, and Warmwater Habitat. This is especially true of headwater streams that have pools with maximum depths in the 20-40 cm range. Given that there are no primary headwater stream aquatic life uses or existing use determinations, those headwater streams that might obtain one of the existing aquatic life uses discussed, will now just be characterized as Limited Resource Waters. As such they will be erroneously classified and receive little to no protections. This has the potential to greatly degrade the water quality of all of Ohio’s watersheds.
Instead of this new and ill-advised proposal for determining when impacts to undesignated waters can be authorized under NWPs, Ohio EPA should use the scientifically-based methods that have proven to be effective. The agency should continue the application of Primary Headwater Habitat protocols that have been used for years to determine the quality of headwater streams. Further, Ohio EPA should work to put into regulations the rule package for Primary Headwater Habitat streams that has been stopped from moving forward[OS3] .
The agency spent well over a decade gathering the data, conducting analysis, and scripting the draft rules. This rule package provides a system that incorporates the protocols to assign designated uses to headwater streams. Further, it would allow for a tiered review process and protection of truly high quality headwater streams. We insist this happens now before the Primary Headwater Habitat draft rules are forgotten and we are stuck with the proposed, untested, and unscientific method for assessing which undesignated headwater streams can be allowed to be impacted under the NWPs.
Also, there is one existing provision in the NWP Certification that truly needs modification, Section D5 “Director’s Authorization”. This provision allows the Director of EPA to make exemptions from individual Section 401 Water Quality Certification requirements and allow coverage under a NWP those project-related impacts he or she determines to be of minimal consequence. This provision can be used to impact some of Ohio’s highest quality aquatic resources including “high quality waters” - CWH, EWH, SSH, Superior High Quality Waters, and Outstanding State Waters. It also can allow impacts to Category 3 wetlands, and the rendering of a determination by the Director alone that public need will be met, using the language in NWP certification.
Determinations to allow impacts to these high caliber aquatic resources through NWPs runs counter to the intent of establishing NWPs. Decisions to allow impacts to such high quality resources should never be made in the dark by a single person. Decisions to consider whether to allow impacts to these resources need to be made transparently and with public notice as is provided by an individual Section 401 Water Quality Certification application and review. Section D5 “Director’s Authorization” needs to be removed from the NWPs certification.
All in all, the proposed modifications to Ohio EPA’s certification of the NWPs seem clearly to be an attempt to please special interests, most visibly the coal mining industry. The Agency apparently feels compelled to modify the NWP certification two years before it expires to satisfy the coal industry and a few other special interests. As proposed, the modifications will greatly increase the amount of destruction that can occur to Ohio’s valuable wetlands, rivers, and streams under the NWPs with no oversight from Ohio EPA, citizens of Ohio or the intent of the Clean Water Act. The Agency seems content to take a pass on its obligation to protect the environment for the citizens of Ohio.
The Ohio Wetlands Association recommends the Ohio Environmental Protection Agency only modify the existing Section 401 Water Quality Certification for the Nationwide Permits by removing Section D5 “Director’s Authorization” and replacing the current headwater stream evaluation with a method that establishes the existing use of each headwater streams rather than using a method that paints with a broad and coarse brush.
Further, we recommend the existing draft of the rules for primary headwater streams be moved forward and adopted into rules on a fast track basis. These rules will allow for scientific assessment and wise use of our valuable headwater resources. Their implementation is long overdue.
Sincerely,
Policy Committee of the Ohio Wetlands Association
[OS1]How was this denied? Was this part of a normal periodic review?
[OS2]For those of us new to this, What are 'undesignated headwater streams'? How common are they?
[OS3]Has this package been introduced previously? What prevented it from moving forward?
Ohio Environmental Protection Agency -DSW
Attention: Permits Processing Unit
P.O. Box 1049
Columbus, Ohio 43216-1049
RE: Comments on the proposed Modifications to the Section 401 Water Quality Certification of the NWPs - Ohio Wetlands Association
Ohio EPA is considering modifying the Clean Water Act (CWA) Section 401 Water Quality Certification it issued for the CWA Section 404 Nationwide Permits (NWPs) in 2012. The current certification does not expire until 2017 but Ohio EPA has decided to reopen and modify some of the conditions and nationwide permits that regulate the activities of some special interests, primarily coal mining. It appears obvious that these proposed changes are being put forward at the request of those industries. Why Ohio EPA is entertaining energy industry desired modifications is questionable. Citizens of Ohio have to wonder why Ohio EPA is willing to make these changes, putting surface water resources in peril, and providing no apparent benefits for most Ohioans.
The NWPs proposed for modification are 12 -Utility Line Activities, 14 - Linear Transportation Projects, 21 -Surface Coal Mining Activities, 49 - Coal Remining Activities, and 50 - Underground Coal Mining Activities. The NWPs dealing with coal mining, 21, 49, and 50 were denied in the 2012 Section 401 Water Quality Certification[OS1] . Ohio EPA now intends to certify them and allow substantially large impacts to occur using the NWPS. It’s interesting that the three NWPs that deal with coal mining activities, and were denied in 2012, are now proposed to be certified with limited restrictions.
Historically, NWP 49 as used by the Army Corps of Engineers (once they receive an individual certification from Ohio EPA) has been limited to formerly mined areas. Even under that restriction there was no allowance for the amount of recovery and restoration that had occurred since the resources were last mined. It’s as though setting back the clock to the time before restoration efforts was not a degradation. However, the new certification would allow a project to be authorized under NWP 49 as remining even if up to 40 percent of the area slated for impacts had not previously been impacted (virgin) by surface coal mining activities. Clearly, this provision is meant only to please the coal industry and does not meet the definition of the activity, Coal Remining Activities, that NWP 49 was established to cover. It should not be allowed.
For NWPs 12 and 14 the various thresholds have been raised, that would require an individual Section 401 Water Quality Certification, to allow more activities to occur than are currently acceptable under these NWPs. In particular, all activities associated with maintenance have no limits on the amount of impacts that can occur to high quality resources. This carte blanch treatment is totally unacceptable when it comes to NWP authorization which are aimed at activities that collectively only result in minimal environmental impacts.
Additionally, some of the general conditions of the certification would be relaxed to allow more activities to be authorized under the NWPs. One provision proposes to do away with the primary headwater habitat assessment methods for determining the quality of headwater streams being impacted. This one provision has gathered so much interest that there have been separate stakeholder meetings. The most recent of those stakeholder meetings was held in Columbus on Feb. 3.
Supposedly in response to the process, Ohio EPA is now suggesting that only undesignated headwater streams that are upstream of “high quality waters” should be exempted from coverage under NWPs. “High quality waters” are defined by Ohio EPA as streams with Cold Water Habitat (CWH), Exceptional Warmwater Habitat (EWH) and Seasonal Salmonid Habitat (SSH) aquatic life uses, or Superior High Quality Waters and Outstanding State Waters.
While this may be protective of water quality in the watersheds of “high quality waters” it means elsewhere it will be open season on undesignated headwater streams as all their protections are removed. There[OS2] are no protections for the headwaters of Warmwater Habitat stream watersheds, which are systems of “Fair” to “Good” ecological condition, and are in compliance with the Clean Water Act as representing an acceptable level of water quality. We can be sure the quality of the downstream water bodies, in these watersheds which are not considered “high quality waters”, will further degrade. This approach definitely contradicts the Clean Water Act’s definition of “existing use” and will allow the elimination of large numbers of undesignated headwater streams, many of which may be of high quality, with no assessments of their ecological condition, and no mitigation for their losses.
Further, this fosters a system of winners and losers. “High quality waters” are protected from impacts to their tributary streams in their headwaters, regardless of their condition. However, lesser quality streams can suffer an unregulated amount of accumulated impacts to their undesignated headwater streams over time greatly reducing the water quality of the watershed. Even a high quality, but undesignated, headwater stream, in a less than high quality watershed, can be destroyed under this provision in the proposed modification to the NWPs certification. This is a poor way of managing our valuable aquatic resources and runs counter to the goals of the Clean Water Act.
The general condition for headwater assessments also treats all streams with a watershed of <1mi2 as though there is no potential for them to obtain other uses than those of primary headwater habitat. This is just not the case and studies have shown that streams with watersheds as small as 0.5 mi2 have been able to attain aquatic life uses including Coldwater Habitat, Exceptional Warmwater Habitat, and Warmwater Habitat. This is especially true of headwater streams that have pools with maximum depths in the 20-40 cm range. Given that there are no primary headwater stream aquatic life uses or existing use determinations, those headwater streams that might obtain one of the existing aquatic life uses discussed, will now just be characterized as Limited Resource Waters. As such they will be erroneously classified and receive little to no protections. This has the potential to greatly degrade the water quality of all of Ohio’s watersheds.
Instead of this new and ill-advised proposal for determining when impacts to undesignated waters can be authorized under NWPs, Ohio EPA should use the scientifically-based methods that have proven to be effective. The agency should continue the application of Primary Headwater Habitat protocols that have been used for years to determine the quality of headwater streams. Further, Ohio EPA should work to put into regulations the rule package for Primary Headwater Habitat streams that has been stopped from moving forward[OS3] .
The agency spent well over a decade gathering the data, conducting analysis, and scripting the draft rules. This rule package provides a system that incorporates the protocols to assign designated uses to headwater streams. Further, it would allow for a tiered review process and protection of truly high quality headwater streams. We insist this happens now before the Primary Headwater Habitat draft rules are forgotten and we are stuck with the proposed, untested, and unscientific method for assessing which undesignated headwater streams can be allowed to be impacted under the NWPs.
Also, there is one existing provision in the NWP Certification that truly needs modification, Section D5 “Director’s Authorization”. This provision allows the Director of EPA to make exemptions from individual Section 401 Water Quality Certification requirements and allow coverage under a NWP those project-related impacts he or she determines to be of minimal consequence. This provision can be used to impact some of Ohio’s highest quality aquatic resources including “high quality waters” - CWH, EWH, SSH, Superior High Quality Waters, and Outstanding State Waters. It also can allow impacts to Category 3 wetlands, and the rendering of a determination by the Director alone that public need will be met, using the language in NWP certification.
Determinations to allow impacts to these high caliber aquatic resources through NWPs runs counter to the intent of establishing NWPs. Decisions to allow impacts to such high quality resources should never be made in the dark by a single person. Decisions to consider whether to allow impacts to these resources need to be made transparently and with public notice as is provided by an individual Section 401 Water Quality Certification application and review. Section D5 “Director’s Authorization” needs to be removed from the NWPs certification.
All in all, the proposed modifications to Ohio EPA’s certification of the NWPs seem clearly to be an attempt to please special interests, most visibly the coal mining industry. The Agency apparently feels compelled to modify the NWP certification two years before it expires to satisfy the coal industry and a few other special interests. As proposed, the modifications will greatly increase the amount of destruction that can occur to Ohio’s valuable wetlands, rivers, and streams under the NWPs with no oversight from Ohio EPA, citizens of Ohio or the intent of the Clean Water Act. The Agency seems content to take a pass on its obligation to protect the environment for the citizens of Ohio.
The Ohio Wetlands Association recommends the Ohio Environmental Protection Agency only modify the existing Section 401 Water Quality Certification for the Nationwide Permits by removing Section D5 “Director’s Authorization” and replacing the current headwater stream evaluation with a method that establishes the existing use of each headwater streams rather than using a method that paints with a broad and coarse brush.
Further, we recommend the existing draft of the rules for primary headwater streams be moved forward and adopted into rules on a fast track basis. These rules will allow for scientific assessment and wise use of our valuable headwater resources. Their implementation is long overdue.
Sincerely,
Policy Committee of the Ohio Wetlands Association
[OS1]How was this denied? Was this part of a normal periodic review?
[OS2]For those of us new to this, What are 'undesignated headwater streams'? How common are they?
[OS3]Has this package been introduced previously? What prevented it from moving forward?