Bill deregulating streams would ease development, opponents say it threatens drinking water

Ohio House Bill 175 would remove the Ohio Environmental Protection Agency’s authority to regulate ephemeral streams. Ephemeral streams have flowing water during and — for a short time — after precipitation such as rain and snow melt. Their beds are located above the water table year-round, and runoff from rainfall is the primary source of water for stream flow.

The bill would put those streams under less stringent storm water regulations. That means developers, for instance, could then build on land with those streams without applying for permits or taking mitigation measures, as required by current law.

Proponents argue deregulating the streams poses no environmental risks. The streams can be disruptive to development and add tens of thousands of dollars to overall constructions costs, which are passed on to consumers, said Vince Squillace, executive vice president of the Ohio Home Builders Association.

HB 175 is unnecessary and would have detrimental impacts on the environment, opponents say. It will weaken protections for drinking water sources throughout the state when more protections and increased enforcement are needed, said Eric Sauer of the Greater Dayton Partners for the Environment. The group sent written testimony to the Ohio House Agriculture and Conservation Committee, expressing their concerns about HB 175.

Removing the buffers that ephemeral streams provide will allow sewage discharge, brine, coal mining waste and chemical toxins into the rivers and groundwater, he said.

“That’s really where the concern is, and especially here in the Miami Valley, with the aquifer that we so depend on for our drinking water, and everything else,” said Sauer, who is also planning manager at Five Rivers MetroParks. “Any reduction in protection to that is a risk to our livelihood and our ability to have good drinking water.”

What are the current rules?

The Ohio EPA ephemeral streams law was implemented in June 2020, and is effective for five years. The state put it in place after a U.S. law that deregulated ephemeral streams at the federal level was enacted in January of that year.

Ohio’s law requires developers to submit a mitigation plan and permit application to the state EPA to build on land with ephemeral streams. They must replace any streams that they fill in and demonstrate that the project will result in a net improvement in water quality. The developer must also agree to monitor the mitigation project for up to five years after construction.

The current rules don’t apply to agricultural development.

Ephemeral streams are key components of the watershed, said Abinash Agrawal, a groundwater expert and environmental sciences professor at Wright Sate University. They have key functions in regulating natural food and nutrient cycles, and they promote biodiversity and healthy aquatic life. Ephemeral streams are effective in terms of degrading many pollutants, he said, noting that he’s opposed to HB 175.

There are an estimated 115,206 miles of primary headwater streams statewide, according to the Ohio EPA. Of that total, an estimated 36,405 miles are ephemeral streams, the agency said. Their benefits and function include:

Currently, 36 states do not regulate ephemeral streams. Neighboring Indiana joined that group in April, when it deregulated them.

HB 175

HB 175 was introduced by state Rep. Brett Hudson Hillyer, R-Uhrichsville, and has five co-sponsors, including state Rep. Tom Young, R–Washington Twp., whose district includes Miamisburg, West Carrollton and Moraine. Its fifth and most recent committee hearing was in June. House Agriculture and Conservation Committee officials have not said if another hearing will be held or when they will vote on the measure.

Calls to Hillyer and Young’s offices were not returned.

Committee Chairman state Rep. J. Kyle Koehler, R-Springfield, held meetings with interested parties during the summer to find ways to address the concerns regarding HB 175, he said. Based on those conversations, his office has come up with some remedies they will consider now that the House is back in session for the fall, he said. Koehler’s office declined to say what those remedies are because he’s still having discussions with Hillyer and other colleagues.

The bill is based on the federal ephemeral stream deregulation law.But a judge struck it down in August and it’s not clear how that ruling will impact HB 175.

“Given this judicial ruling, I am working with interested parties and the bill sponsor to determine if this changes the scope of the bill,” Koehler said. “As conversations on HB 175 continue, this will be something to keep in mind.”

Deregulating ephemeral streams would have many negative effects on the environment, opponents say. Removing the safeguards that the current law provides will make it easier to contaminate groundwater and surface water such as the Little Miami or Great Miami rivers, they say. The majority of Ohio communities get their drinking water supplies from surface water, whereas most communities in the Miami Valley rely on the Great Miami Buried Valley Aquifer.

HB 175 would also make it more challenging for urban areas such to meet their Ohio Clean Water act goals, said Anthony Sasson, senior research associate at the Midwest Biodiversity Institute and a Wittenberg University graduate. He testified before the Ohio House Agriculture and Conservation Committee as a member of the Columbus-based Darby Creek Association.

But proponents countered that ephemeral streams have little environmental significance, and those who oppose HB 175 are unrealistic. The law protecting the streams impede development in general, for instance, including addressing Ohio’s housing shortage, said Squillace, the executive vice president of the Ohio Home Builders Association.

In addition, the ephemeral streams mitigation mandate tends to strain land development budgets and add obstacles that can force developers to cancel projects, he said. As it stands now, federal, state and local regulations account for about 25% of the cost of a house, he added.

“Oftentimes, environmental laws, as they relate to water and development sites, can be very, very expensive,” Squillace said. “That’s not to say they’re all unwarranted, but if there’s going to be a major impact and how a body of water is going to be handled, it’s got to be reasonable, or else we could essentially just stop the whole development altogether, or modify it to a point where it no longer would be feasible.”

A better option is for ephemeral streams to fall under storm water regulations, which is what HB 175 is proposing, and that would remove many of the barriers, Squillace and other proponents say. Because there’s little difference between storm water on a site and what might accumulate in an ephemeral stream, they have been misclassified as rivers and streams, he said.

“The nonscientific definition of an ephemeral stream is a stream that starts nowhere and goes nowhere,” Squillace said. “It just accumulates water.”

Richard Warner, an emeritus professor of biosystems and agricultural engineering at the University of Kentucky, also favors storm water systems as an alternative to ephemerals streams. The functions of most ephemeral streams are negative because of their environmentally detrimental consequences to stream and water bodies farther downstream, he said in written testimony to Agriculture and Conservation Committee.

The solution is not to replace and expand ephemeral stream pathways, as Ohio EPA requires, said Warner, who is also a hydrologist and has taught at UK for more than 40 years. Today, society benefits from professionally engineered storm water best management practices to replace the unstable ephemeral stream channels and gullies encountered at development sites, he testified.

“Whether it be surface mining regulated under Ohio’s Mining and Reclamation Act or development and construction activities regulated by Ohio EPA’s Construction Activity General Permit, surface water runoff events are managed to reduce flooding and erosion and control sediment,” he said.

Agrawal disagrees with Squillace and Warner. Ephemeral streams are vastly different, he said. They allow the water to infiltrate directly into the ground so that the pollutants naturally degrade in the soil. Storm water systems are artificially designed and allow pollutants to accumulate, he said. All of the water and pollutants such as nutrients, sediments and other urban toxins that are diverted by storm water lines to a nearby body of water tend to degrade the water quality and negatively affect the aquatic life, said Agrawal, who has studied the region’s surface and ground water for more than 25 years.

Retention ponds and storm water systems simply aren’t practical, said Sasson, who has worked in environmental science for more than 40 years. They have to be maintained perpetually, he said

Storm water systems and retention ponds also can cause erosion down stream that can destroy trees and other plants that act as buffers to private property and surface water, Sauer said.

HB 175 opponents argue that the bill isn’t needed, and the long-term effects of removing regulatory oversight will result in significant degradation of Ohio’s waterways, Ohio EPA Director Laurie A. Stevenson told the House committee in May.

“Ohio EPA’s mission is to oversee the protection of Ohio’s natural resources,” she said. “Throughout the ephemeral stream general permit development process, Ohio EPA has attempted to strike a balance between a reasonable permitting approach that is protective of human health and the environment, while allowing for projects to advance in an efficient and flexible manner.”