Why does the Environmental Protection Agency have the power to approve or deny development?
The Ohio Environmental Protection Agency and Water Quality
The Ohio Environmental Protection Agency opened in 1972, the same year the The Federal Water Pollution Control Act was passed. This law was amended in 1977 and has since been known as the Clean Water Act of 1977.
The Ohio Environmental Protection Agency's Division of Surface Waters is responsible for enforcing the Clean Water Act in Ohio. This includes protecting the physical, chemical, and biological state of Ohio waters. Section 401 of the CWA requires approval from state agencies for permitting any activity "which may result in any discharge into the navigable waters" of a state. It regulates discharges from industrial, storm water, mining and municipal point sources. Permits issued to these sources include limits and requirements to protect water quality in the receiving streams.
The Army Corps of Engineers' authority under section 404 of the CWA only extends to the normal high water mark of a navigable body of water. But the EPA authority under section 401 has been controversial for years, with some people reading the law as covering every stream and isolated body of water, including ephemeral bodies of water such as vernal pools, and every drainage ditch. In June of 2007 the EPA and Corps of Engineers released a joint memo spelling out these jurisdictional limits:
The agencies will assert jurisdiction over the following waters:
The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water:
The agencies generally will not assert jurisdiction over the following features:
The agencies will apply the significant nexus standard as follows:
So when a development affects a wetland or navigable stream, such as a residential development that will discharge storm runoff into a stream, the development must obtain permits under both section 401 and section 404 of the CWA. A "discharge" in this context means a quantity of one cubic yard or more.