Buckeye State: Cheers and Jeers for New Ohio Stream Mitigation Rule

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.

New Ohio Stream Mitigation Rule, December 10, 2010

Comment (1)

Fair, effective, timely and cost effective rules needed

The proposed stream mitigation rules issued by Ohio EPA in December 2010 have been under development, to the best of my recollection, since 2003. This version will likely suffer the same fate as the previous two versioins – they will be withdrawn or substantially revised and re-issued for comment at a later date. The primary problem is that the proposed rules are confusing, unfair, not predictable and will not be cost effective (for OEPA or applicants). The previous governor quietly directed the Ohio EPA to hold off on issueing the rules for public comment during the election. After the election was lost in November, the former governor allowed the Ohio EPA to issue the rules for comment just before his time on the clock expired.

As for your comments on the Ohio EPA study on mitigation banks, I agree, it is a flawed study. However, your assessment of why it was flawed is absolutely wrong! It has nothing to do with private vs. non-profit banks. The motivation to meet performance goals is the same for non-profit bank sponsors as it is for profit banker sponsors (I agree that government and permittee responsible mitigation projects in Ohio tend to leave a lot to be desired). The reason the study was flawed is that it used 12 different banks that ranged in age from 10+ years to less than 1 year old. Of the 12 banks studied, 8 of them had not yet completed their third growing sesaon when the data was collected. Furthermore, the study compared bank imature banks projects to “reference” wetlands that have suffered no-impact or distubrance or have fully recovered from disturbance. Furthermore, the Ohio EPA assessment was not basaed on how well the banks were doing relative to the MBRT approved performance goals! The Ohio EPA was reckless in issuing this report without clearly pointing out the studies shortcomings. The agencies bias against banks has blinded its objectivity. The study was funded by a grant ($350,000+) that Ohio EPA recieved from the USEPA Region 5. While valuable information was collected, the slant of the report was a diservice to taxpayers and the reulatory program it was intended to help improve.