Credit to Ohio for issuing a new rule (and to attorney Joe Koncelik for blogging it) that will begin to conform that state’s water quality program to the standards of the 2008 federal mitigation rule. This was not the explicit goal of the rule but it is surely a secondary benefit, from a legal stand point.
Ohio is putting in place the same type rules North Carolina issued in 1996, and subsequently, to require the replacement of damaged streams with like-kind stream restoration or other stream mitigation. This is admirable. But from what I hear on the grapevine Ohio has another thing in common with the Tar Heel state: A latent hostitility to mitigation banks as the source of the mitigation. Again, this is personally unconfirmed, but I hear that establishing a professional, bonded, mitigation bank in Ohio is just as adversarial and risk-prone as it has been historically in North Carolina.
If true, they have got trouble on their hands. Raising mitigation standards and requiring more professional mitigation, in the absence of the full-utilization of professional third-party providers, is generally fruitless — and often counter-productive. For instance, Wal-Mart and their hourly consultants are not going to provide mitigation — on-site or off-site — nearly as effective as that which is located and peformed by bonded mitigation professionals. Developers develop. They don’t care for young swamps well. But Ohio EPA is published saying just the opposite — that there is no benefit to banks. So, I suppose the new mitigation required by the Ohio rule will be expected to be provided spot-by-spot, project by project, developer by developer? What a shame.
(Incidentally, I carefully reviewed the Ohio study when it came out and found it flawed. The study was looking largely at “non-profit” banks which have nearly no incentive for getting it right. With mitigation, it is not the method — but the motivation — that makes things work. Bureaucrats and do-gooders, bless their hearts, generally do not carry mitigation through to success because their incentive is low for funding and maintaning the intense long-term intense commitment required of ecological restoration as mitigation. I recommend a far more comprehensive study done by NCDENR concluding banks and “Full-Delivery” projects are more successful than other forms of mitigation )
Ohio needs to continue on the sound regulatory course they have set for themselves — but recognize and encourage the responsible professionalism provided by mitigation bankers and providers. For instance, nowhere in the new rule is the term “bank” even used. How horrible to ignore the federally mandated preferred source of mitigation in a state rule concerning mitigation. That’s like requiring everyone to eat fruits and vegetable and providing no accompanying farm policy other than “grow-it-yourself”!
It seems the timing of the new rule is somewhat politicized in advance of the new conservative Governor taking office. If that’s true the EPA has left their flank open if they expect to pass new regulations without adequate attention to the availability of the compensatory mitigation to the regulated community. If I were a new governor or state legislator, I’d ask why my state is racing ahead with new regs without encouraging a means of economical compliance. But good luck to Ohio EPA nonetheless. We will be following you.