OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 175 Final Analysis
134th General Assembly
Click here for H.B. 175’s Fiscal Note
Primary Sponsor: Rep. Hillyer
Effective date: July 21, 2022; appropriations effective April 20, 2022
Helena Volzer, Attorney
SUMMARY
Ephemeral features
 Excludes ephemeral features that are not waters of the United States (WOTUS) under
the federal Clean Water Act from regulation under Ohio’s water pollution control
programs, including the section 401 water quality certification program.
 Specifies that an ephemeral feature is a surface water flowing or pooling only in direct
response to precipitation, such as rain or snow, and does not include a wetland.
 For ephemeral features that are WOTUS under the federal Clean Water Act, maintains
the authority of the Ohio Environmental Protection Agency (OEPA) to regulate impacts
to these waters.
 Establishes mitigation requirements, best management practices, and reporting and
monitoring requirements that apply when these regulated ephemeral features will be
impacted and a section 401 water quality certification is required.
 Excludes particular types of projects, such as water quality improvement projects and
small dredge and fill projects, from the act’s mitigation requirements, best management
practices, and reporting and monitoring requirements.
 Regarding a regulated ephemeral feature, prohibits the OEPA Director from both:
 Imposing or requiring any mitigation standard, criteria, scientific method, process, or
other procedure or policy not specified by the act with respect to a proposed impact
to the ephemeral feature; and
 Imposing any requirement on an activity impacting a regulated ephemeral feature
beyond those specified in the act or by administrative rule for any activity impacting
an ephemeral feature that requires the issuance of a section 401 water quality
certification.
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 Eliminates the section 401 water quality certification review fee that applied to all
ephemeral streams (greater of $5 per linear foot of stream to be impacted or $200).
Federal Interagency Review Team
 Requires the OEPA Director, the Director of Natural Resources, and the Director of
Transportation to each appoint an agency designee and an alternate to the federal
Interagency Review Team (IRT) (which reviews documentation and advises U.S. Army
Corps of Engineers district engineers on mitigation projects).
 Specifies that the appointees must have significant experience in at least one specified
subject area: wetland or stream restoration, enhancement and protection of wetlands
or streams, or compensatory mitigation plan development.
 Requires at least one appointee to maintain minutes of IRT meetings and specifies that
those minutes are a public record.
Protocols for adoption of mitigation standards
 Alters a provision of law requiring all substantive standards used by the OEPA Director
to evaluate section 401 water quality certification mitigation proposals to be adopted
via rule in accordance with the Administrative Procedure Act to specify the following:
 All substantive standards used by the IRT when reviewing documentation related to
mitigation activities are also subject to that provision;
 The provision applies to any guidance or guidelines used by the Director or the IRT;
 A mitigation proposal may include proposals involving a wetland mitigation bank or
stream mitigation bank, in-lieu fee mitigation, or permittee responsible mitigation;
and
 The provision also applies to the establishment of performance metrics, a request
for credit release, or termination of monitoring requirements.
 Eliminates law that authorized the Director to use additional mitigation standards,
criteria, etc. (without going through the Administrative Procedure Act) in reviewing a
mitigation proposal if the Director notified the applicant in advance that additional
standards would be considered.
 Establishes a 24-month timeline to implement the changes specified above.
Property tax exemption
 Establishes a property tax exemption for property held by a 501(c)(3) organization
organized for conservation purposes if the property either:
 Is subject to a mitigation requirement pursuant to a section 401 water quality
certification or isolated wetland permit; or
 Is a nature water project that receives funding through the H2Ohio program.
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Class VI injection wells
 Requires the Department of Natural Resources (DNR) to begin working with the U.S. EPA
and the U.S. Department of Energy to develop a state underground injection control
program for Class VI injection wells (used to inject CO2 into deep rock formations).
Indian Lake weed mitigation
 Requires the DNR Director to enter into a memorandum of understanding with the
Indian Lake Watershed Project concerning weed harvesting services at Indian Lake.
 Appropriates $500,000 for weed harvesting in FY 2022 and reappropriates the unspent,
unencumbered balance for FY 2023.
TABLE OF CONTENTS
Federal regulation of ephemeral features ...................................................................................... 3
Ephemeral features under state law .............................................................................................. 5
Regulated ephemeral features.................................................................................................... 6
Permanent impact: mitigation requirements ........................................................................ 7
Mitigation calculations ........................................................................................................... 9
Temporary impacts: mitigation requirements ..................................................................... 10
Best management practices ................................................................................................. 10
Additional reporting and monitoring ................................................................................... 11
Exclusions ............................................................................................................................. 12
Prohibition against additional requirements ....................................................................... 12
Other state environmental laws ............................................................................................... 13
Impacts to other statutes .......................................................................................................... 13
Review fee ................................................................................................................................. 14
Federal Interagency Review Team ................................................................................................ 14
Protocols for adoption of mitigation standards ........................................................................... 15
Property tax exemption ................................................................................................................ 15
Class VI injection wells .................................................................................................................. 16
Indian Lake weed mitigation ......................................................................................................... 16
DETAILED ANALYSIS
Federal regulation of ephemeral features
The federal Clean Water Act (CWA) establishes the basic structure for regulating
discharges of pollutants into “navigable waters,” which the statute defines as “waters of the
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United States, including the territorial seas.”1 The terms “navigable waters” and “waters of the
United States” (WOTUS) are used for purposes of several CWA programs, including:
 Statutory schemes governing discharges of dredged or fill material under CWA Sections
404 and 401, administered jointly by the U.S. Army Corps of Engineers and U.S.
Environmental Protection Agency (U.S. EPA), and the states and territories of the United
States;
 Discharges of pollutants into WOTUS from “point sources” under CWA Section 402,
delegated to most states for permitting under the National Pollution Discharge
Elimination System (NPDES); and
 Spills of oil and hazardous substances under Section 311.
Over time, the U.S. EPA has adopted rules defining the types of water bodies that are
encompassed within the term “navigable waters.” In 1985, the U.S. Supreme Court held that
“navigable waters” includes more than only those waters that would be deemed “navigable” in
the “classical” or traditional sense.2 However, the scope of these terms remained somewhat
unclear, and the Court revisited the issue in 2006.
In Rapanos v. United States, the Court offered a plurality decision, posing two possible
interpretations of the term:
1. Justice Scalia and three other Justices found that these waters are “relatively
permanent” waters that hold a “continuous surface connection” to a traditionally
navigable water.
2. Justice Kennedy, in a concurring opinion, wrote that to be a navigable water, a WOTUS
must have a “significant nexus” to a traditionally navigable water.3
Attempting to clarify the rule, in 2015, the U.S. EPA adopted the second approach,
evaluating waters on a case-by-case basis under the “significant nexus” test. However, in 2017,
President Trump signed an executive order directing U.S. EPA to rescind the 2015 rule and
instead adopt a new WOTUS rule reflecting the first approach offered by Justice Scalia in
Rapanos.4 That rule took effect on June 22, 2020.5 Shortly thereafter, several lawsuits were
filed challenging it.6
1 33 United States Code (U.S.C.) § 1362(7).
2
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133 (1985).
3
Rapanos v. United States, 547 U.S. 715 (2006).
4
Executive Order 13778 of February 28, 2017.
5 33 Code of Federal Regulations (CFR) § 328.3 (April 21, 2020).
6
See California v. Andrew Wheeler, Civil Action No. 3:20-cv-03005 and Pasqua Yaqui Tribe v. United
States EPA, 2021 U.S. Dist. Lexis 163921.
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On August 31, 2021, a federal court in Pasqua Yaqui Tribe vs. United States EPA ruled
that application of the 2020 WOTUS rule is suspended. The court vacated the WOTUS rule and
reverted back to the 1985 version of the rule (as further interpreted under the Rapanos
“significant nexus” test) nationwide. Thus, under this decision, whether or not a body of water
is a WOTUS must be determined on a case-by-case basis, considering whether the water has a
“significant nexus” to a traditionally navigable water. President Biden’s administration also
began administrative rulemaking to revise and clarify the WOTUS definition. The public
comment period for that rulemaking closed on February 7, 2022.7 Until the rule is finalized, the
Court’s ruling in Pasqua Yaqui Tribe is the current WOTUS rule.8
Ephemeral features under state law
The act revises Ohio’s regulation of ephemeral features, which are surface waters, not
including wetlands, that flow or pool only in response to precipitation, such as rain or snow, to
align it with the federal WOTUS definition.9 Under prior law, all ephemeral features were
subject to Ohio’s Water Pollution Control Law, meaning a person was required to obtain a
permit from the Ohio Environmental Protection Agency (OEPA) to discharge dredge or fill
material into an ephemeral feature. That permit is referred to as a section 401 water quality
certification (401 certification). Any other discharge of pollutants into an ephemeral feature
required a National Pollutant Discharge Elimination (NPDES) permit.10 The act, instead,
establishes the following two classes of ephemeral features:
1. Ephemeral features that are WOTUS under the CWA and subject to regulation by the
Army Corps of Engineers for dredge and fill operations. The discharge of dredge and fill
material into this type of ephemeral feature requires a 401 certification issued by OEPA.
Any other discharge of pollutants requires an NPDES permit from OEPA. In addition,
other specific state requirements established by the act apply to these ephemeral
features and the issuance of 401 certifications, including mitigation requirements, best
management practices, and reporting and monitoring requirements.
2. Nonregulated ephemeral features. These ephemeral features are not WOTUS under the
CWA and are not subject to regulation by the Army Corps of Engineers. The act
deregulates these ephemeral features and no permit under Ohio’s Water Pollution
Control Law is required from OEPA to conduct dredge or fill operations in them or
discharge other pollutants in them (but see “Other state environmental laws,”
7 See 86 Fed.Reg. 69372, available at federalregister.gov.
8U.S. EPA, “Current Implementation of Waters of the United States,” available on the U.S. EPA’s Waters
of the United States webpage, epa.gov/wotus.
9 R.C. 6111.01(V).
10 See R.C. 6111.03(J) and 6111.04, not in the act.
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below). Thus, if the ephemeral feature is not regulated under federal law, it is not
subject to regulation under the act.11
Regulated ephemeral features
As indicated above, for those ephemeral features subject to regulation, the act requires
the issuance of a 401 certification from OEPA whenever the ephemeral feature will be impacted
by a dredge and fill operation. The act also establishes mitigation requirements, best
management practices, and additional reporting and monitoring requirements that apply to the
issuance of a 401 certification. These requirements vary, depending on whether the impact to
the ephemeral feature is temporary or permanent. An impact is temporary when all of the
following apply:
 It facilitates a proposed activity or aids in the access, staging, or development of any
construction;
 It will not last more than two years; and
 On termination of the impact, the conditions of the ephemeral feature are expected to
return to pre-impact functionality or better condition within 12 months after the
termination.
A permanent impact is any impact that is not temporary.12
The act delineates four distinct categories of requirements and standards that the
OEPA Director may impose:
1. Mitigation requirements and standards that apply when a feature will be permanently
impacted;
2. Mitigation requirements and standards that apply when a feature will be temporarily
impacted;
3. Best management practices that the Director may impose for:
a. Permanent impacts when the Director requires a person to conduct mitigation by
constructing an equivalent area of channel or site-specific measurement to provide a
geomorphically stable feature in the impacted watershed; or
b. Any temporary impact.13
4. Additional reporting and monitoring requirements the Director may impose for:
11 R.C. 6111.01(H) and (V) and 6111.311 to 6111.316; see R.C. 6111.03(J), not in the act.
12 R.C. 6111.311(F) and (G).
13 R.C. 6111.313 and 6111.315.
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a. Permanent impacts when the Director requires a person to conduct mitigation by
constructing an equivalent area of channel or site-specific measurement to provide a
geomorphically stable feature in the impacted watershed; and
b. All i