New Ohio Wetland Protection Opportunities Surface
By: Molly Flanagan

In the coming year, there are several exciting opportunities regarding Ohio’s wetland regulations. They include: the establishment of an electronic clearinghouse for wetland mitigation information, a review of Clean Water Act policy on wetland permit applications by the Ohio Environmental Protection Agency (OEPA), and a new version of Ohio’s biocriteria for categorizing wetlands.

Grassroots groups can lend their voice and ideas to the shape of these state policies, and can work together to continue to improve our ability to fight locally to protect and restore wetlands.

Mitigation Clearinghouse

OEPA has announced plans to establish an electronic clearinghouse for mitigation projects. The purpose of the clearinghouse will be to exchange information between applicants that are seeking projects for mitigation as part of their 401 Water Quality Certification or Isolated Wetland Permit and individuals who have a property or projects that are available for mitigation.

This clearinghouse could provide a unique opportunity for grassroots groups in Ohio to pick worthwhile restoration projects in their own watersheds to list in the clearinghouse. This would allow watershed organizations to focus mitigation projects in the watershed where the wetland destruction is taking place by offering developers specific mitigation projects within their watershed, rather than in some far-off part of the state. This could prevent mitigation efforts from going towards mitigation banks in other portions of the state where they do nothing to offset the damage done by a particular wetland fill in a particular watershed.

401 Certifications

In January 2001, the Supreme Court ruled in Solid Waste Agencies of Northern Cook County v. US Army Corps of Engineers that the Clean Water Act did not extend to isolated wetlands solely on the basis that they provide habitat for migratory birds or endangered species. This ruling meant that federal permits were no longer required in order to discharge wastes into isolated waters. In July 2001, following that court ruling, Ohio’s legislature adopted a new state law that set up an Isolated Wetland Permitting Program. The Isolated Wetland Permit Process is similar to, but weaker than Ohio’s permitting program for jurisdictional wetlands. The isolated wetland permitting process contains weaker mitigation requirements than the jurisdictional process.

Following a three-year rulemaking committee that could not reach agreement, the Director of OEPA said his agency would continue to review the state’s regulations on “wetland and stream fill permits”, also known as “Water Quality Certifications under section 401 of the Clean Water Act”. Under current rules, the developer is supposed to show that the wetland destruction cannot be avoided. However, in practice, the OEPA has only disapproved one such application in the past three years, and most projects are approved along with some requirement to do a “mitigation” project.

Grassroots groups can play a role with local media or during public comment periods to explain that, once paved over or culverted, the important hydrologic and ecological functions of these water bodies are lost, yet the state’s policies for reviewing the applications are weak on two basic points: the poor review of the construction project for alternative locations or designs, and the approval of “mitigation” projects that do not truly compensate for the lost habitat and functions.

Wetland Field Assessment Methods and Biocriteria

Field biologists and botanists with OEPA’s Division of Surface Water have finished conducting studies of wetlands in Ohio and will be developing new field surveys based on their findings. The field survey is used to identify characteristics such as plants and amphibians in a wetland to determine its category. Under Ohio’s rules,wetlands are divided into three categories with a Category 1 wetland being the lowest quality and a Category 3 wetland being the highest quality.

Local watershed groups can participate in a couple of ways. One way would be to take advantage of the training classes on the new field methods so they are able to actually categorize wetlands and better understand and protectwetlands in their own watersheds. Another opportunity for local groups may come with public hearings or informational sessions on the new assessment methods and related biocriteria.

Local Action

Even under OEPA’s existing wetland program there are several things that grassroots groups can do to protect and restore wetlands in their watersheds. Groups can get involved by getting on Ohio’s mailing list for public notices of proposed 401 certifications in their region and by submitting comments to Ohio EPA and speaking out at a public hearing, or building a relationship with a local reporter or politician.

It is important to push for permit denials. The Friends of Sheldon’s Marsh achieved victory in this arena when the Ohio EPA denied a 401 Water Quality Certification permit for Barnes Nursery.

The OEC is actively engaged in protecting and restoring Ohio’s wetlands. In 2004, we will continue to work on the local, regional, state and federal levels to protect and restore Ohio’s valuable water resources. Please feel free to contact Molly Flanagan (molly@theoec.org) or Keith Dimoff (keith@theoec.org) or at (614) 487-7506 if you have any questions or would like any more information on Ohio’s wetlands.