New EPA Rules Will Allow Some Darby Pollution

The Ohio EPA is currently revising its water quality regulations. A key component of these regulations is the agency’s classification system for streams. In general, the higher the classification of a stream, the more protection that stream is afforded. Protection ranges from limited control on new pollution discharges into poor quality streams, to a virtual ban on new pollution discharges into the state’s highest quality streams.

The EPA is proposing to put both Big and Little Darby in the state’s second highest category, termed "state resource waters" (SRW). Streams in this category have some protection, but dischargers are allowed to use 30 percent of the stream’s "assimilative capacity." Assimilative capacity refers to the amount of pollutants a stream can receive before it is degraded to a lower water quality category. The so-called 70 percent "setaside" of Darby’s capacity for pollution is intended to act as insurance against degradation to a lower category; however, under the rules there is no guarantee increased pollution loads won’t harm species. Given ongoing declines in some of Darby’s most sensitive aquatic animals, DCA is concerned that further pollution will only worsen this trend.

Moreover, DCA believes that categorizing the Darbys as state resource waters is simply in error, given the EPA’s own rules. Under these rules, both Darbys clearly qualify for the state’s highest category, Outstanding National Resource Waters (ONRW). This category, which states are required to have under the federal Clean Water Act, is reserved for streams with "national ecological or recreational significance."

EPA rules list habitat for threatened or endangered species, and designation in the national scenic rivers program, as relevant factors in determining "national significance."

It is obvious that Darby meets the necessary criteria for national significance. It is habitat for at least two federal endangered species, as well as numerous threatened and state-listed species. It is also a national scenic river. In addition, it has been identified as a high priority stream by the U.S. Fish and Wildlife Department, which proposed a national wildlife refuge for the watershed based on the stream’s national ecological significance. In addition, in the last two years the U.S. Congress has allocated special funds for conservation land purchases along the Darbys based on the streams’ national significance.

Of course the creeks are high priorities for one national conservation group — the Nature Conservancy — and one regional conservation agency, namely Metro Parks. Both have invested much time and money in preserving the Darbys.

The importance of Darby’s listing cannot be exaggerated. If Darby is recognized in the state’s highest category the EPA essentially will not permit any new pollution discharges from "point sources" through its permits.

Sources inside and outside of the OEPA indicate that the agency is reluctant to grant ONRW status for political reasons. There is a fear that the designation will be perceived as anti-development and anti-growth. As a result, the EPA is not recommending that any Ohio stream be designated ORNW. The category is essentially a "phantom." DCA questions whether this is living up to the spirit of the Clean Water Act.

DCA believes such a designation for the Darbys would not result in unreasonable economic hardship in the watershed. The area is mostly rural, with very limited industrial and municipal dischargers. In addition, current dischargers would be "grandfathered" into their present level of discharge. The new rules would simply prohibit additional pollution, which should be a common-sense goal of all Darby jurisdictions.

DCA will be petitioning OEPA for a change in Darby’s designation in the near future.