COLUMBUS, Ohio — In early March, House Bill 175 was introduced by state Rep. Brett Hudson Hillyer of Ulrichsville, south of Canton. HB 175 seeks to remove the Ohio Environmental Protection Agency’s authority for the oversight of all “ephemeral features” and exclude them from the definition of waters of the state.
Ephemeral features are streams and wetlands that flow or pool in direct response to precipitation or melting of snow. If HB 175 is enacted, discharging pollutants to or filling these features would not be regulated, and anyone could fill, dredge or discharge any pollutants to these bodies of water without a permit.
This would result in eliminating all protection and requirements related to ephemeral streams, which, according to Ohio EPA testimony on the bill, represent more than 30% of Ohio’s primary headwater streams, that is, the small creeks, brooks, springs and ravines that are the origin of most rivers.
Ephemeral streams and wetlands 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 the source of drinking water in Ohio and used for fishing and recreation.
The Clean Water Act is structured to protect and improve the water quality of “waters of the United States” (WOTUS) and “navigable waters.” The act used these two terms to define its scope and to regulate the discharge of pollutants and dredge and fill activities that impact surface waters.
Since enactment of the Clean Water Act (CWA) in 1970, the definition of these two terms has been subject to litigation and political debate. The U.S. Environmental Protection Agency developed rules to define these two terms. Also, over the years, the U.S. Supreme Court dealt with cases related to this issue. In 1985, the high court decided that the term “navigable waters” includes more than those waters that are deemed “navigable.”
Obviously, the EPA rules and the Supreme Court’s decision were not successful in defining the scope of the CWA.
In 2006, the Supreme Court revisited the issue and offered a plurality decision, posing two possible interpretations:
1. WOTUS must have “relatively permanent” waters that hold a “continuous surface connection” to a traditionally navigable waters (Justice Antonin Scalia’s interpretation).
2. WOTUS must have a “significant nexus” to a traditionally navigable waters (Justice Anthony Kennedy’s interpretation).
In 2015, the U.S. EPA and the US Corps of Engineers revised the rules to adopt an approach that requires evaluating water bodies on a case-by-case basis under the “significant nexus” test.
In 2017, President Donald Trump signed an executive order…