The State of Ohio has joined many other states in formally registering its concern regarding the seemingly limitless reach of the USEPA/Corps of Engineers’ proposed rule to define the extent of federal jurisdiction over streams and wetlands.

Attorney General Mike DeWine’s November 13th letter echoes the concerns of many other commenting entities which have pointed that a rule which was meant to provide “certainty” instead will require case-by-case analysis of “transitional areas,” “exchange of energy and materials between ecosystems,” and whether areas act as a “single landscape unit.” The chorus of state regulatory officials who have voiced concern over the scope and real world application of the WOTUS rule will perhaps persuade the USEPA and the Corps to reconsider aspects of the proposal.

While the Attorney General’s concerns are well placed, note that the Ohio EPA takes the positon that it has jurisdiction over any water including “wetlands” and non-jurisdictional streams, which are not regulated under the Section 404 permitting program. Accordingly, even if the WOTUS rule is narrowed, these ephemeral streams, isolated wetlands and the like will continue to be regulated by the State of Ohio.