Ohio Must Keep Vigilent to Make Sure Destroyed Wetlands and Streams are Being Replaced

The fourth installment in the OELC’s report on the State of Clean Water Act Violations in Ohio

(Posted by Trent A. Dougherty, Director of Legal Affairs, Ohio Environmental Council, Director of Ohio Environmental Law Center)

The first three installments of the Ohio Environmental Law Center’s Series on the State of Clean Water Act enforcement in Ohio has been focused on the large number of NPDES discharge violations.  Yet, there is another big problem facing the Ohio EPA’s enforcement process – acres of wetlands and thousands of linear feet of streams being filled, requiring mitigation, but mitigation projects not being constructed.   In fact, when we asked Ohio EPA Division of Surface Water management what were the big enforcement issues facing Ohio EPA — lack of mitigation second only to the great number pollutant discharge violations.

Before a housing developer, mining operation, municipality or any other entity fills a wetland or stream, Section 401(a) of the Clean Water Act (CWA) requires them to obtain from the state, a certification that the discharge is consistent with state water quality standards.  These certifications usually require, among other terms and conditions, that the developer mitigate their impacts by, for example, constructing a wetland to replace the size and water quality function of the wetland destroyed.

Of the thousands of mitigation projects in effect, a large number violate the simple requirement of reporting progress of constructed wetland and stream mitigation projects. As an example, see a list of Suspect Pending Mitigation Projects compiled from Ohio EPA records in Spring 2010.

These Ohio EPA records show a list of over 200 401 Certification holders who have been required to conduct compensatory mitigation to replace the size and function of the watercourses they have impacted, but at the time of the list had not sent monitoring reports as required, nor  had Ohio EPA any knowledge of whether the mitigation has begun.

In some instances, inclusion on this list of “suspect projects” can be a mere paperwork issue where the permittee simply forgot to file the necessary reports after mitigation had been constructed.  While such mistakes are Clean Water Act and Ohio Water Quality Law violations, they have not substantially impaired the waters of Ohio.  However, what appears as a  minor paperwork issue may be hiding other, more substantive violations of law.  Specifically, it may be hiding instances where a wetland has been filled but the creation of a replacement wetland has not occurred.

This problem speaks only to whether there has been mitigation constructed, not even to the quality (or lack thereof) of the mitigation – another huge issue impacting Ohio water quality.  It does, however, also underlie two larger problems with Ohio EPA enforcement.

First, it shines a light on how few resources Ohio EPA has to monitor these projects as they not only do not have the staff to verify whether mitigation is occurring, but further do not have the staff to always follow up on whether those constructed projects conducted according to technical and ecological requirements.  Secondly, there still considerable concern over whether constructed wetlands adequately replace the function as well as their naturally occurring counterpart.  If that construction is not conducted at all, the impact to the watershed is even more profound.

There is a way to combat the issue of 401 Certification violations through the Clean Water Act’s Citizen Suit provisions.  After a year of researching the Ohio EPA’s files concerning 401 certifications based on the list of suspect mitigation proposals, we noticed a large number of coal operators on the list of “suspect mitigation projects.”  While coal operations were not the largest class of suspects, the number was significant.

As a reaction, last December, Ohio Environmental Council filed a 60 –day notice against Oxford Mining for not filing annual reports and for not properly mitigating their impacts to thousands of linear feet of streams on a number of projects in Eastern Ohio.

In response to our 60-day notice, the Ohio EPA proceeded with enforcement due to the Company’s lack of reporting.  Also, Ohio EPA staff and management have expressed that they will pursue changes in the language of their certification terms and conditions that allows them more ability to go motivate coal operators to quickly mitigate their impacts as to have no net loss.  Further, the 60-day notice led to a very productive meeting between OEC and Oxford that assisted us in understanding the ways coal operators proceed with their projects, and influenced the way we responsibly advocate for appropriate EPA oversight of these mitigation projects.

However, citizen or government enforcement through the legal system need not be the only way to fix this problem.  This is truly an area where more staff and capacity with Ohio EPA to monitor and follow up on the thousands of mitigation projects is sorely needed.  More resources for the Ohio EPA mitigation staff would help compliance, make sure the watersheds are protected, and provide certainty to the regulated community.

While politicians now a days want to see leaner state government, when protecting our wetlands and streams, the state needs to pack on a few pounds.

For more information on Ohio EPA’s Mitigation program, check out the 2010 report.