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Insulting Ohio’s small waters

By Mark Wilson

We’ve entered the age of civility. Politicians started off 2011 by tempering their choice of words when criticizing an opponent. House Speaker John Boehner stopped calling the Democrats’ healthcare bill “job killing” and began calling it “job crushing.”

Recently, a senior water quality manager at Ohio EPA tried his hand at civility by saying farmers are “insulting” small waters instead of “polluting” them. Feel better now, farmers? I wouldn’t.

“Small waters” generally refer to watercourses not typically thought of as natural streams. They tend to convey runoff or tile drainage from upland areas of less than 1 square mile. Most people call them ditches, grass waterways or ephemeral streams (streams that carry water only when it rains).

It’s been Ohio EPA’s goal to expand their authority to “small waters” for a long time — essentially since the mid ‘90s when pollution resulting from stacks and pipes (i.e. point sources) became secondary and pollution resulting from man’s use of the land (nonpoint sources) emerged as primary.

Ohio EPA is close to achieving a significant step toward their goal. On March 8, pending an unlikely extension of the deadline, the public comment period will close on what is a very complex and lengthy set of four inter-related rule packages designed to dramatically limit what farmers and rural landowners can do to “small waters.” What would someone want to do to “small waters?” The answer is obvious to anyone who knows that Ohio receives 40 inches of rainfall per year: improve drainage.

The four rules have been 10 years in the making. They consist of a dizzying array of impossible-to-disprove flow charts, indices, formulas and metrics. It’s so absurd that very few bureaucrats at Ohio EPA even know what’s in there.

Essentially, each rule explains in exhaustive detail how Ohio EPA plans to protect “small waters” by protecting aquatic insects, amphibians and riparian habitat. Only in certain situations will fish be protected. That’s because Ohio EPA has finally acknowledged most “small waters” go dry in the summer and fish need water to live … never thought I’d see the day.

Ohio EPA says the way to protect aquatic insects and amphibians is to provide habitat in and/or near “small waters.” Straight as an arrow, trapezoidal channels with 2:1 side slopes don’t provide habitat; meandering channels with trees, log jams, root wads, benches and large flood plains do. Needless to say, habitat is bad news for conveyance. Intentional or unintentional, the fact of the matter is these four rules pose a very serious threat to agricultural drainage and by association, crop production.

A little background on how things reached this point. Ohio EPA is mandated by the federal Clean Water Act to protect “waters of the U.S.” and by Ohio’s Water Pollution Control Law to protect “waters of the State.” Because of some U.S. Supreme Court decisions, what is considered “waters of the U.S.,” and thereby regulated under federal law, is now a lot less. As things stand now, the Clean Water Act rarely applies to “small waters.”

However, what is considered “waters of the state,” and thereby regulated under state law, includes just about everything except private ponds and bird baths. Ohio EPA, with a great deal of self-importance, will say: “it’s our moral obligation to protect everything, including “small waters.” But here’s the rub. They have never developed the appropriate tools (i.e. regulations) to protect “small waters.”

The water quality standards we famously hear so much about were developed for “large waters” and tend to fall apart (i.e. don’t stand up in court) when applied to “small waters.” Thus, the four rule packages are Ohio EPA’s best attempt to formalize these tools in Ohio Administrative Code.

The sad reality is it won’t be hard for Ohio EPA to bolster public support for these rules. In a 30-second sound bite they could say the small streams of Ohio are being “insulted” and, as a result, no longer meet Ohio’s water quality standards. Then they could follow up with some authoritative and self-serving comment about carrying out the goals of the Clean Water Act. Who’s got the knowledge and time to challenge them?

The cost to comply with these regulations will be steep. So steep that many landowners will opt not to perform the regular maintenance it takes to keep water flowing. In turn, this will limit grain yields for farmers, job opportunities for contractors, equipment sales for dealers, etc., etc.

Before placing such an economic hardship on farmers and rural landowners, Ohio EPA has an obligation to go beyond anecdotes and actually quantify how much the law is going to cost and what kind of benefits will be realized. All they do now is describe how sediment will be created when a channel is straightened (duh!) and how that sediment will be deposited downstream and smother — correction, insult — aquatic life.

Beneath all of this is something even more insidious: an effort to somehow discredit farmers and professional land improvement contractors as stewards of the land.

I, for one, am insulted.

Copyright © 2011. All rights reserved. Mark L. Wilson is president of Land Stewards, LLC. He can be reached at mwilson@landstewards.com or 740-751-4703.

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