In June the Ohio General Assembly enacted Substitute House Bill 231 (HB 231), which severely erodes protections for almost half of Ohio’s remaining wetlands. That legislation came as a result of the January 9, 2001 U.S. Supreme Court decision which found that the Clean Water Act did not apply to isolated wetlands (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers or SWANCC). Isolated wetlands are those wetlands seemingly unconnected to other surface water such as a river or lake. HB 231, which also applies only to “isolated wetlands”, abolishes a process for developing these isolated wetlands. The previous rules, providing a three-step approach emphasizing wetland avoidance, then minimization of impact, and lastly mitigation, were eliminated.
The Ohio Legislature was not satisfied with sacrificing only “isolated wetlands” to development. A new bill, HB 320, has been introduced, and would allow the remaining wetlands in the state — the “connected wetlands” and waters of the state which were not addressed by the SWANCC decision — to be developed more easily.
Generally, under the process created in HB 320, a person seeking to dredge or fill a wetland or other water of the state must obtain an individual state dredge and fill permit or be covered by a general state dredge and fill permit. Negative impacts to wetlands resulting from the dredging or filling operations must be mitigated through conducting mitigation activities. The level of review for a permit, the criteria used to approve or disapprove a permit application, and the mitigation requirements for the dredging or filling of a wetland all depend on the size and category of wetland that is being impacted. HB 320 establishes three different categories of wetlands as well as public notice and participation requirements, fees, and requirements related to wetland mitigation banks.
HB 320 falls short in several areas:
1. It decreases the potential for public oversight and participation in the permit process.
2. It promotes mitigation instead of seeking other alternatives, a questionable approach given recent studies on the results of mitigation.
3. It makes it easier to justify wetland and stream destruction projects for development purposes.
4. As a statute, it would be more difficult to amend or modify than the current regulatory process, which now falls under the jurisdiction of the Ohio Environmental Protection Agency.
Find the bill via the webpage of the 124th Ohio General Assembly at: www.legislature.state.oh.us/.
For background about the shortcomings of mitigation, see Compensating for Wetland Losses Under the Clean Water Act, National Academy of Sciences, National Academy Press, Washington D.C., 2001.