Following the Supreme Court’s ruling in the Sackett case, the US Army Corps of Engineers suspended issuance of Approved Jurisdictional Determinations (AJDs). AJDs are the vehicle by which the Corps formally identifies what wetlands, streams, and other waterbodies are subject to regulation under the federal Clean Water Act. Without an AJD, a project can not realize the reduction in the reach of federal regulation post-Sackett.
During a budget hearing held yesterday in the U.S House of Representatives Transportation and Infrastructure Committee’s Subcommittee on Water Resources and Environment, Assistant Secretary of the Army Michael Connor stated that the Corps and USEPA intend to promulgate a new, final Waters of the US rule “expeditiously” using the Administrative Procedure Act’s direct final rule process. This direct final rule process would be completed in-lieu of creating temporary guidance to allow AJDs to be issued in the near term. Connor stated, “I don’t expect that we’ll be back in the approved jurisdictional determination business until we get this final rule in place.”
Importantly, the Administrative Procedure Act’s direct final rule process is intended for routine or non-controversial matters; it does not allow for the agency to receive substantive adverse comments. Due to the contentious nature of WOTUS, it is feasible that a direct final rule approach could result in additional delays in rulemaking (and thus issuance of AJDs in accordance with the principles of Sackett) should the agencies have to withdraw the direct final rule and proceed through the full rulemaking process.
Please contact Vince Messerly or Greg Snowden with questions on how these regulatory changes may affect your project.”
The Lorain County Metro Park’s (LCMP) Sandy Ridge Reservation, located in North Ridgeville, Ohio, contains approximately 526 acres, including the entire 120-acre Sandy Ridge Wetland Mitigation Bank. The Stream and Wetlands Foundation (S+W) established the mitigation bank in 1997 and the site has been open to the public since 1999.
Residents and bird lovers come from near and far to enjoy the natural areas, walking the beautiful trails and boardwalks that provide visitors numerous vantage points to view the multitude of wildlife. This year, the park announced the first successful Sandhill Crane nesting. The Sandhill Crane colt can be seen many days feeding along with its parents in the wetlands. Bald Eagle nesting continues at Sandy Ridge with several different pairs joining the initial pair. In addition, Trumpeter Swans have been nesting at Sandy Ridge for the past four years to the joy of many visitors.
The wetland mitigation bank includes a large marsh complex that is adjacent to a mature wetland forest. The distinctive habitat within the park attracts a diverse assemblage of waterfowl, wading birds and shore birds. Park staff have identified 250 bird species with 111 documented as breeding. Patronage at Sandy Ridge Reservation continues to increase every year, with many visitors proclaiming that this is one of the best wildlife viewing areas in Northern Ohio.
“Plant and animal diversity has continued to increase over the past couple of decades due to the diligence and hard work of the park system staff,” said Joshua Michalski, park manager for Sandy Ridge Reservation. “The Lorain County Metro Parks strives to further increase ecological diversity and productivity of Sandy Ridge Reservation, along with a focus on education and community outreach.”
Prior to the settlement of the area, much of the Sandy Ridge Reservation supported extensive amounts of wetland habitat. However, like much of Lorain County, it was drained and converted to farmland for many years.
“We started working with Dan Martin (former LCMP Director) in 1996 to develop the wetland bank project,” said Vince Messerly, president of S+W. “Dan’s goal at the outset was to restore a high-quality wetland that could be easily visited, with trails that would allow people to see wetland flora and fauna up close. The objective was to help improve people’s appreciation of wetlands and to foster their care and protection for future generations. I believe the Sandy Ridge project has clearly met all of Dan’s original goals.”
S+W Foundation is very proud to have supported the Lorain County Metro Parks, the long-term owner and managing partner for this beautiful wetland restoration project that is enjoyed by people of all ages. “In partnership with the S+W Foundation, Sandy Ridge Reservation has evolved into an important wetland habitat,” said Michalski. “A large thank you to S+W, the U.S. Army Corps of Engineers and the Ohio EPA for all the work they did making Sandy Ridge Reservation possible.”
Read more about Sandy Ridge Reservation and its diverse habitat here.
Before European settlement, the Bloody Run Swamp wetland and stream mitigation site was part of an approximately 450-acre wetland, later to be called the Bloody Run Swamp. It was the second largest wetland in the area after the Great Swamp, which eventually became Buckeye Lake (Figure 1). Indigenous Americans traveled and hunted in this area following buffalo paths and “Old Hebron Road,” which offered easy passage between Bloody Run Swamp, Bloody Run and the South Fork Licking River. It also led to Flint Ridge, in the eastern part of the county, where they collected material for flints.
Figure 1
This part of Ohio was largely un-touched by European settlers prior to 1800. The first European cabin in the area was likely built between Bloody Run and the present-day Village of Kirkersville in the early 1800’s. Etna township was settled in 1815, and over the next fifteen years, the large influx of citizens made it necessary to set up their own local government. In 1805, the United States Congress passed an act allowing the construction of a major road that would facilitate travel from Cumberland, Maryland, to Ohio. This road, National Road (U.S Route 40), reached Columbus in 1825, and hastened human expansion in its path. The building of the National Road was, “the most important event in the life of Kirkersville and Etna Township,” and its importance and influence on shaping Ohio’s early life cannot be overstated (Schaff, 1905).
Impacts to the Great Swamp
Between 1825 and 1828, the Great Swamp was drastically impacted by the building of the Ohio canal system. The “old reservoir,” which was later named Buckeye Lake in 1894, was built, which effectively drained the Great Swamp. The water level in this reservoir was not high enough to feed the canal in the summer, so a second 500-acre reservoir was constructed in 1832. Creeks and small streams, including portions of Bloody Run, were straightened into feeder canals, shown on Figure 2, which were diverted to the reservoir for use in the Ohio canal (Detmers, 1912). Increases in settlement, the National Road, canals, and reservoirs led to the removal of forests and drastic topographic modifications. By 1840, the Bloody Run Swamp was the only regional wetland that remained in its primitive or “primeval” state (Trautman, 1939).
Figure 2
A man named Morris Schaff grew up in this area in the mid-1800’s and wrote Etna and Kirkersville, in 1905. He described the local families, conditions of daily life, and dedicated significant portions of this book to descriptions of the plant and animal life in and around the Bloody Run Swamp. These descriptions give a first-person account of what the Bloody Run Swamp was like before being completely drained and cultivated for agricultural use. He wrote:
“The head of this swamp, now practically all cleared fields, when I was a boy was about a half mile east of Kirkersville and reached to the old bed of Licking Creek, a distance of two and a half miles. It was about a half mile wide and was a thickly matted growth of willows, young elms, water beeches and alders. In the middle were several islands covered with big timber where the last of the wild turkeys roosted” (Schaff, 1905).
Figure 4 is the 1875 Union Township map, which labels the various islands located in the swamp. Sassafras Island and Long Island fall within the boundaries of this mitigation project.
Figure 4
In another description Schaff poetically wrote:
“When I was a boy three fourths of Etna Township was covered by a noble primeval forest. And now, as I recall the stately grandeur of the red and white oaks, many of them six feet and more in diameter, towering up royally fifty and sixty feet without a limb; the shellbark hickories and the glowing maples, both with tops far aloft; the mild and moss-covered ash trees, some of them four feet through; the elms and sturdy beeches, the great black walnuts and the ghostly-robed sycamores, huge in limb and body, along the creek bottoms, I consider it fortunate that I was reared among them and walked beneath them” (Schaff, 1905).
Other accounts describe the swamp as a “mixture of cranberry-sphagnum-red maple-poison sumac bog-swamps, alder-red ozier brush communities, and swamp forests of the elm-ash-soft maple-pin oak type” (Trautman, 1939). It was habitat for wild turkeys, blackbirds, beavers, bobcats, otters, timber wolves, black bear, white-tailed deer, raccoons, gray foxes, gray squirrels, muskrat, and passenger pigeons. At one time, Schaff wrote,
“There would be the appearance of a blue wave four-or five-feet high rolling toward you, produced by the pigeons in the rear flying to the front. When startled while feeding, their sudden rise would sound like rumbling thunder (…) Once they darkened the sky. Millions of them flew over Etna Township as they traveled to and from their feeding ground to roost in Bloody Run Swamp (Schaff, 1905).”
Figure 3 is another early map of the area showing the Pigeon Roost within the Bloody Run Swamp.
Figure 3
Transportation impacts to the area
In 1855, railroads became the third method of major transportation to the area. Greater accessibility allowed for an increase of markets for farm produce and other products. More forests were removed, and the first attempts were made at draining the Bloody Run Swamp. As livestock and crop cultivation became prevalent, many of the native animals became thought of as pests. Community hunts would take place where hunters would circle a given area and drive all the animals to the center. Once surrounded, all the animals would be shot. Competitive hunts also took place to reduce numbers of certain animals, such as gray squirrels. One such hunt in Licking County claimed 3,800 gray squirrels in a day (Trautman, 1939). The passenger pigeon was another species to be hunted in excess. Whereas, they were previously so abundant as to darken the sky, by 1880, they were almost completely gone from the area, eventually hunted to extinction.
Public Ditch Laws were enacted in Ohio during the 1840’s and 1850’s to encourage settlement in Northwest Ohio (ODNR 2009). Agricultural drainage improvement projects were enacted under those laws to facilitate the conversion of low-lying areas into productive agricultural lands across the state. Areas were quickly and systematically drained; by 1884 the Ohio Society of Engineers and Surveyors reported there were approximately 20,000 miles of public ditches benefiting 11 million acres of land (ODNR 2009).
Between 1900 and 1930, the Bloody Run Swamp was completely drained and deforested, losing its distinctive flora and fauna. Schaff wrote in 1905, “The way that majestic forest was sacrificed is painful to recall.” Figure 5 is a 1906 USGS map that shows all but a small portion of Bloody Run Swamp was gone by that time. Records from 1912 indicate that it was almost wholly under cultivation at that time. Two farmers are mentioned as planting celery and onions in the rich muck soil (Detmers, 1912).
Figure 5
Restoring wetlands at this project, which was formerly part of the Bloody Run Swamp, will bring it back, as closely as possible, to its historical condition of centuries past. Very few mitigation sites have such rich history that includes detailed native species lists. This is an exciting opportunity to honor the past, while improving current water quality, sedimentation, and other ecological issues in the watershed. As Morris Schaff wrote, “Nature has many moods, but she was in her grandest when she ordered the woods of Ohio to rise up.”
Where we are today
The project is located within the Bell Run-South Fork Licking River watershed (HUC 05040006-04-06). The predominant land use within this watershed is row crop agriculture. This watershed drains some of the flattest, glaciated topography in the whole Licking River watershed (Ohio EPA, 2012).
Buckeye Lake, one of two lakes in this watershed, has cultural and recreation value to the area. The South Fork Licking River was modified to feed water to Buckeye Lake, where it then discharges back into the river. Based on nine yearly assessments, the lake is over-productive and impaired based on elevated dissolved oxygen, organic loading (N and P), and excessive Secchi depth values. The Biological and Water Quality Study of the Licking River and Selected Tributaries 2008 (Ohio EPA, 2012), put Buckeye Lake on a “watch” status, and it recommended preventing nutrient inputs into the lake. Wetlands perform many useful functions relating to water quality. Re-establishment of wetlands on the project will aid in improving water quality within the watershed; restoration activities will help reduce existing agricultural runoff that contributes to excess nutrients and sediment loading.
Population growth to bring environmental challenges
It is expected as the Columbus metro area grows, this will alter land uses in the entire Licking River sub-basin, particularly a decline in agriculture and increase in rural residences and mixed-use commercial/industrial areas. The MS4 program of Ohio EPA has currently listed the South Fork Licking River as a rapidly developing watershed. GROW Licking County Community Improvement Corporation estimates the Licking County population will increase by at least 15% over the next twenty years. There is evidence that land disturbance, such as construction activities, will increase stress on water quality, habitat, and aquatic life.
The agricultural drainage systems that were originally designed and maintained by county commissioners were primarily for water conveyance and management; they were not engineered as a water quality management tool. The channelized design of agricultural drainage ditches facilitated the conveyance of water but eliminated connectivity to an active floodplain resulting in the disruption of important hydrologic and geomorphic stream dynamics. The design also reduces nutrient assimilation and results in the increased transportation of sediment, nutrients, and other pollutants downstream, the majority of which are exported downstream by large storm events that take place <10% of the year (Davis 2015). Agricultural drainage systems promote algal production in sensitive ecosystems, like Buckeye Lake and Lake Erie, where eutrophication may result in periodic hypoxia and fish kills. Statewide monitoring work conducted by Ohio EPA has identified ditching and the channelization of larger streams as leading causes of impairment of water quality and the overall health of aquatic life (ODNR 2009).
In the Bell Run-South Fork Licking River sub-watershed, where the project is located, intensely farmed landscapes account for over one half of the area’s land use. Within the watershed, countless streams have been encapsulated in subsurface drain tile and approximately one third of the existing drainageways identified by the National Hydrology Dataset are impacted for agricultural benefit. The incised, over-wide trapezoidal channels are efficient at conveying base and flood flows. However, the lack of connectivity to an active floodplain interrupts important hydrologic and geomorphic dynamics required to maintain efficient water conveyance over time. The disruption of these dynamics results in the loss of stream power, and the ability to transport sediment through the system. Sediment accumulates throughout the channel, restricting the capacity of the entire drainage network. This necessitates routine maintenance to remove the accumulated sediments to maximize hydraulic capacity. However, dredging destabilizes bank slopes leading to additional erosion and scour and ultimately additional efforts to maintain channel function. This style of drainage network is costly, disrupts the existing ecology of the stream, and adversely impacts water quality (Fausey 1982). There is a critical need in these systems for innovative best management practices that improve ecosystem function while maintaining effective, low maintenance drainage.
Channel and floodplain restoration will significantly improve stream function and water quality. The primary goal of the project design is to reconnect Bloody Run to a restored forested floodplain to improve nutrient assimilation, reduce erosion and sedimentation, and improve water quality. Establishing an appropriate pattern, profile, and floodplain will increase flow capacity and reduce flooding during storm events. The improved hydrologic dynamics will also reduce maintenance needs within the drainage network allowing aquatic habitat to improve.
Map scans courtesy of BLM General Land Office Records, patent details, Ohio River Survey 1854 Wall Map of Licking County Beers’ Atlas of Licking County 1866 Combination Atlas Map of Licking County Ohio, By L.H. Everts 1875 1907 USGS Thurston, Ohio
State and federal laws (sections 401 and 404 of the Clean Water Act, as well as Ohio Revised Code 6111) require impacts to aquatic resources, including wetlands and streams, to be offset with compensatory mitigation. One way to provide the required mitigation is for applicants to purchase mitigation credits from mitigation banks or in-lieu fee (ILF) program sponsors. The Stream + Wetlands Foundation (S+W) was established in 1992 and is the sponsor of multiple mitigation banks and ILF programs.
What are UMBIs?
Mitigation banks are typically single site projects. However, in some instances, sponsors may choose to establish an Umbrella Mitigation Bank Instrument (UMBI). The instrument that establishes an UMBI sets out the parameters for the establishment of bank sites that will be operated under the UMBI. Multiple bank sites can then be added to the UMBI over time. UMBIs can help streamline the review and approval process for new sites and be used for tracking no-net loss of wetland acreage within the watershed.
What Does This Mean for Permittees?
Rather than purchasing credits from a specific mitigation bank, permittees will buy from the approved UMBI. For example, in northeast Ohio, a permit applicant could buy credits from the Black-Rocky UMBI, which currently has one approved site, the Grafton Swamp Wetlands Mitigation Bank. Click to see our other approved UMBIs and associated bank sites.
In-Lieu Fee (ILF) Advance, Fulfilled, and Released Credits: ILF mitigation credits work essentially the same way as credits purchased from a mitigation bank, as far as a permit applicant is concerned, although banks do have preference in the mitigation hierarchy. There are three types of credits described in the federal mitigation rule: advance credits, fulfilled credits, and released credits.
“Advance” ILF Credits: Advance credits (i.e., typical ILF credits) can be used by permit applicants to fulfill their compensatory mitigation needs when bank credits are not available. The ILF program sponsor then has three years to start implementation of a mitigation project to fulfill the amount of advance credits that were sold to an applicant.
“Fulfilled” ILF Credits: When a sponsor completes an ILF mitigation project, the credits generated by the project can be used to “fulfill” the previously sold advance credits. This satisfies the three-year timeline specified in the federal rule.
“Released” ILF Credits: If a sponsor generates credits at a project beyond what is needed to fulfill their advance ILF obligations in that service area, and if they receive regulatory approval, those surplus credits are considered “released” credits. A “released” ILF credit is equivalent to a mitigation bank credit because like a bank, the mitigation was provided in advance of authorized impacts, and therefore there is no temporal loss of aquatic resources.
Each type of mitigation option has unique features and requirements, and the choice of which one to use depends on various factors, including type of wetland impacted, the type and scope of the project, and whether or not is a state and/or federally regulated aquatic resource. Whether using mitigation bank or ILF credits, once a permit applicant completes payment to the sponsor, the applicant has fulfilled the requirements of their permit.
S+W is one of the only mitigation providers in the country that sells both mitigation bank and ILF credits! Reach out through our website or by contacting Kellie Griffin at kgriffin@streamandwetlands.org.
Up to five scholarships of $5,000 each will be awarded.
Applications are now being accepted for the Stream + Wetlands Foundation scholarships for the 2023-2024 academic year. The scholarship fund is held and managed by the Fairfield County Foundation (FCF), a 501(c)(3) non-profit dedicated to enhancing the quality of life and economic viability of the Fairfield County community. Applications and a letter of interest must be submitted through the FCF website by Friday, March 10, 2023. Visit the FCF website here: https://www.fairfieldcountyfoundation.org/scholarships.
Requirements:
Applicant must be a resident of Ohio AND an undergraduate or graduate student currently attending a college or university in Ohio.
Applicant must have completed at least one year towards an associate’s or bachelor’s degree in engineering, biological or ecological science.
Applicant must have a minimum cumulative grade point average of 2.5.
Applicants working towards a degree that will facilitate a career in native habitat restoration engineering/ecology will be given highest priority.
After the deadline, Stream + Wetlands will review the applications and make selections for scholarship recipients. Notification of scholarship recipients will take place in May and June 2023. Applications are due by 11:59 p.m. on March 10, 2023.
Please feel free to contact Stream + Wetlands’ Controller Megan Garber at mgarber@streamandwetlands.org with any questions about the scholarship or submittal requirements. For questions regarding the Fairfield County Foundation or the scholarship process, contact Senior Program Officer Abby King ataking@fairfieldcountyfoundation.orgor Program Officer Andrea Spires at aspires@fairfieldcountyfoundation.orgor call (740) 654-8451.
Ohio ENGINEER magazine is the official publication of the Ohio Society of Professional Engineers (OSPE). In the recent edition focused on environmental engineering, an article written by Stream + Wetlands Foundation’s President Vince Messerly is featured. “Mitigating for impacts to ephemeral streams” discusses House Bill 175 which recently went into effect on July 21, 2022 and its protection of ephemeral streams and its alignment with Ohio EPA’s regulatory authority with federal jurisdiction (Waters of the United States or WOTUS). Read Vince’s article here (pages 6-7).
On April 6, 2022, the 134th Ohio General Assembly passed Substitute House Bill 175. The legislation was signed by Governor DeWine on April 21 and went into effect on July 21, 2022. The law preserves Ohio EPA’s ability to protect ephemeral streams and aligns Ohio EPA’s regulatory authority with federal jurisdiction (Waters of the United States or WOTUS). It helps ensure that Ohio’s waterways are not used as a dumping ground for debris and waste and strikes a balance between protecting Ohio’s waterways and providing consistent state regulations to support economic development and construction of infrastructure. This will provide needed clarity for the regulated community and continued protection of water quality. On July 21, 2022, Ohio EPA also rescinded the general permit for ephemeral stream impacts that was previously adopted by the agency in 2020 when the Navigable Waters Protection Rule was promulgated by the Trump Administration. The Ohio EPA has created a Guidance Document and Ephemeral Stream Mitigation Calculator to aid applicants that have proposed impacts to ephemeral streams in applications for Section 401 Water Quality Certifications.
The legislation also added criteria by which Ohio agencies may participate in the Interagency Review Team (IRT) process. The IRT process described in the federal mitigation regulations at 33 CFR 332 is utilized to complete review and approval of mitigation projects that provide compensation under Sections 404 and 401 of the Clean Water Act and Ohio’s Isolated Wetland Law. Additionally, the legislation requires that within twenty-four months of the effective date of the legislation, the Director of Ohio EPA shall review and adopt, in accordance with sections 106.03 and 119.03 of the Revised Code (the “rule making process”), wetland and stream mitigation standards to review and approve mitigation projects, including permittee responsible projects, mitigation banks, and in-lieu fee projects. This should help streamline the review process by providing consistency in the evaluation of mitigation proposals. It will also be the first time that comprehensive regulations for both wetland and stream mitigation will be codified by the Ohio EPA.
The Stream + Wetlands Foundation team is continuing to monitor activities surrounding the impact of these actions and are available to discuss how they could affect your projects.
On June 29, the Muskingum Watershed Conservancy District (MWCD) held a two-hour engagement session to address conservation needs in each of MWCD’s six sub-river basins. The session was led by MWCD’s Executive Director Craig Butler, Chief of Conservation Matt Thomas as well as environmental economist Elizabeth Schuster with Sustainable Economies Consulting and attended by members of the Stream + Wetlands Foundation. At the beginning of the meeting, Executive Director Butler emphasized that the three priorities of the MWCD were flood control, recreation, and conservation.
This strategic planning session focused on the conservation needs in the Licking River watershed. Key discussion topics included maintaining/improving water quality and the quality of life offered while continuing to support population and economic development in the watershed.
On Friday, May 20, the Ohio Department of Natural Resources (ODNR) and Stream + Wetlands Foundation (S+W) held a ribbon-cutting ceremony on H2Ohio’s new Trumbull Creek Wetland Restoration Project. Leading the ceremony were H2Ohio Program Manager Eric Saas, ODNR Director Mary Mertz and S+W’s President Vince Messerly. The event also included a walking tour of the wetland.
“Our main goal with H2Ohio is to improve water quality, but sites like this show just how diverse these wetlands can be,” ODNR Director Mary Mertz said. “People can now come to watch native wildlife or birds just passing through, students can learn about plants and the role they play, or families can come to just enjoy the beauty and tranquility these wetlands provide to the public.”
“We were honored to be chosen to receive a grant from H2Ohio,” said Messerly. “The entire team at ODNR has been responsive and effective at helping us navigate the grant program for the first time for this project. We are hopeful that we can do additional wetland habitat restoration projects in the future through the H2Ohio program.”
About the Trumbull Creek Wetland Restoration Project
Located in Trumbull Township (Ashtabula County), this project restored approximately 25 acres of wetlands and five acres of upland forest that were previously used for crop production. These actions will slow the flow of water across the landscape, reduce nitrogen and phosphorous from the Grand River and Lake Erie while providing an important habitat for wildlife as well as recreation and educational opportunities. This H2Ohio project is adjacent to the 460-acre Trumbull Creek Mitigation Bank.
“The Trumbull Creek H2Ohio restoration project will restore 30 acres of diverse native habitat, including more forest, emergent marsh, and wet meadow habitats,” said Messerly. “We anticipate that wildlife will quickly start to use the site, including waterfowl, migratory birds and amphibians.”
About H2Ohio H2Ohio was launched in 2019 by Governor Mike DeWine as a comprehensive water quality initiative in Ohio to address water issues such as harmful algal blooms on Lake Erie. For more information about the work of H2Ohio, visit their website at https://h2.ohio.gov/.
With a commitment to listening to all sides and working to foster a common-ground approach to WOTUS, the EPA and U.S. Department of the Army announced the selection of 10 geographically varied roundtables in Feb. Through these roundtables, the agencies hope to gain a shared understanding of the challenges and opportunities to enhance WOTUS implementation.
On Monday, May 9, the EPA hosted the first of 10 scheduled virtual roundtables focused on the ongoing Waters of the U.S. (WOTUS) rulemaking. This first meeting, called the Midwest panel by the EPA, was sponsored by the National Parks Conservation Association. Two panelists, representing agricultural interests, called for the federal government to regulate farmers (particularly Iowa farmers) to get a better handle on nutrients pollution.
Agriculture interests have come out strongly in favor of the Trump administration’s 2015 WOTUS rule and against the Biden administration’s proposed two-step rulemaking process to replace the Navigable Waters Protection Rule.
