As Introduced 1
123rd General Assembly 4
Regular Session S. B. No. 20 5
1999-2000 6
SENATOR CUPP 8
10
A B I L L
To amend sections 6111.01 and 6111.12 of the Revised 12
Code to declare, for purposes of the state 13
antidegradation statute, that a historically
channelized watercourse provides technical, 14
social, and economic benefits and to preclude the 15
Director of Environmental Protection from
requiring further antidegradation review upon 16
making specified findings, including a finding
that work is necessary to restore or maintain 17
such a watercourse.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 19
Section 1. That sections 6111.01 and 6111.12 of the 21
Revised Code be amended to read as follows: 22
Sec. 6111.01. As used in Chapter 6111. of the Revised Code 32
THIS CHAPTER:
(A) "Pollution" means the placing of any sewage, 34
industrial waste, or other wastes in any waters of the state. 35
(B) "Sewage" means any liquid waste containing animal or 37
vegetable matter in suspension or solution, and may include 38
household wastes as commonly discharged from residences and from 39
commercial, institutional, or similar facilities. 40
(C) "Industrial waste" means any liquid, gaseous, or solid 42
waste substance resulting from any process of industry, 43
manufacture, trade, or business, or from the development, 44
processing, or recovery of any natural resource, together with 45
such sewage as is present. 46
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(D) "Other wastes" means garbage, refuse, decayed wood, 48
sawdust, shavings, bark, and other wood debris, lime, sand, 49
ashes, offal, night soil, oil, tar, coal dust, dredged or fill 50
material, or silt, other substances that are not sewage or 51
industrial waste, and any other "pollutants" or "toxic 52
pollutants" as defined in the "Federal Water Pollution Control 53
Act" that are not sewage or industrial waste. 54
(E) "Sewerage system" means pipelines or conduits, pumping 56
stations, and force mains, and all other constructions, devices, 57
appurtenances, and facilities used for collecting or conducting 58
water-borne sewage, industrial waste, or other wastes to a point 59
of disposal or treatment, but does not include plumbing fixtures, 60
building drains and subdrains, building sewers, and building 61
storm sewers. 62
(F) "Treatment works" means any plant, disposal field, 64
lagoon, dam, pumping station, building sewer connected directly 65
to treatment works, incinerator, or other works used for the 66
purpose of treating, stabilizing, or holding sewage, industrial 67
waste, or other wastes, except as otherwise defined. 68
(G) "Disposal system" means a system for disposing of 70
sewage, industrial waste, or other wastes, and includes sewerage 71
systems and treatment works. 72
(H) "Waters of the state" means all streams, lakes, ponds, 74
marshes, watercourses, waterways, wells, springs, irrigation 75
systems, drainage systems, and all other bodies or accumulations 76
of water, surface and underground, natural or artificial, 77
regardless of the depth of the strata in which underground water 78
is located, which THAT are situated wholly or partly within, or 79
border upon, this state, or are within its jurisdiction, except 81
those private waters which THAT do not combine or effect a 82
junction with natural surface or underground waters. 84
(I) "Person" means the state, any municipal corporation, 86
ANY political subdivision of the state, ANY person as defined in 87
section 1.59 of the Revised Code, ANY interstate body created by 88
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compact, or the federal government or any department, agency, or 89
instrumentality thereof. 90
(J) "Industrial water pollution control facility" means 92
any disposal system or any treatment works, pretreatment works, 93
appliance, equipment, machinery, pipeline or conduit, pumping 94
station, force main, or installation constructed, used, or placed 95
in operation primarily for the purpose of collecting or 96
conducting industrial waste to a point of disposal or treatment; 97
reducing, controlling, or eliminating water pollution caused by 98
industrial waste; or for reducing, controlling, or eliminating 99
the discharge into a disposal system of industrial waste or what 100
would be industrial waste if discharged into the waters of the 101
state. 102
(K) "Schedule of compliance" means a schedule of remedial 104
measures including an enforceable sequence of actions or 105
operations leading to compliance with standards and rules adopted 106
under sections 6111.041 and 6111.042 of the Revised Code or 107
compliance with terms and conditions of permits set under 108
division (J) of section 6111.03 of the Revised Code. 109
(L) "Federal Water Pollution Control Act" means the 111
"Federal Water Pollution Control Act Amendments of 1972," 86 112
Stat. 886, 33 U.S.C.A. 1251, as amended by the "Clean Water Act 113
of 1977," 91 Stat. 1566, 33 U.S.C.A. 1251. 114
(M) "HISTORICALLY CHANNELIZED WATERCOURSE" MEANS A 117
WATERCOURSE OR PORTION OF A WATERCOURSE THAT IS SUBJECT TO AN 118
IMPROVEMENT, AS DEFINED IN SECTION 6131.01 OF THE REVISED CODE, 120
AND THAT HAS BEEN SUBJECT TO AN IMPROVEMENT FOR AT LEAST TWENTY 121
YEARS.
Sec. 6111.12. (A) The director of environmental 130
protection shall establish an antidegradation policy applicable 131
to surface waters of the state pursuant to applicable federal 132
laws and regulations. The purpose of the policy shall be to 133
maintain levels of water quality that are currently better than 134
prescribed by applicable standards except in situations when a 135
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need to allow a lower level of water quality is demonstrated 136
based on technical, social, and economic criteria. Not later 137
than March 31, 1994, the director shall revise the existing 138
antidegradation policy established in rules adopted under section 139
6111.041 of the Revised Code and revise any necessary 140
implementation procedures to conform them to the following 141
principles and any mandatory regulations adopted under the 143
"Federal Water Pollution Control Act":
(1) The use of existing effluent quality as a method of 145
calculating antidegradation-based limits shall be imposed only to 146
the extent that the use is explicitly required by federal law or 147
regulation as the only means available to implement 148
antidegradation. 149
(2) No degradation shall be allowed in waters for any 151
pollutant that currently does not meet applicable standards. For 152
all remaining waters, there shall be provisions requiring federal 153
antidegradation requirements to be met and provisions ensuring 154
that waters of exceptional recreational or ecological value are 155
maintained as high quality resources for future generations. 156
There shall be at least two categories of surface waters 157
identified in the state for that purpose and for the purpose of 158
establishing priorities for the administrative and technical 159
resources expended on antidegradation reviews. 160
(3) Whenever current ambient water quality is determined 162
to be of a higher quality than prescribed in the standards, on a 163
pollutant-by-pollutant basis, and the water body lacks 164
exceptional recreational or ecological value, the director may 165
allocate to existing sources eighty per cent of the pollutant 166
assimilative capacity as determined by appropriate total maximum 167
daily load procedures without further antidegradation review. The 169
permittee for any existing source may receive an effluent
limitation based on not more than one hundred per cent of the 170
mass or concentration levels necessary to meet applicable water 171
quality in the receiving water body as determined by appropriate 172
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total maximum daily load procedures, provided that there has been 173
a satisfactory demonstration of the need to allow lower water 174
quality based on technical, social, and economic criteria and the 175
action is preceded by a public notice. Sources other than 176
existing sources that result in ten per cent or greater change, 177
that is, degradation, of ambient chemical water quality shall 178
require a demonstration of technical, social, and economic need 179
and shall be the subject of a public notice. 180
(4) Degradation of waters identified as possessing 182
exceptional recreational or ecologic ECOLOGICAL value shall be 183
determined through an analysis of the expected perceptible change 185
in ambient concentrations of pollutant or alternatively through 186
an analysis of the expected change in the biological condition of 187
the water body. Either determination shall constitute a lowering 188
of water quality and shall require an antidegradation review. 189
The director shall establish, by rules adopted in accordance with 190
Chapter 119. of the Revised Code, a definition of perceptible 191
change that shall be applicable to those waters identified in 192
rule as possessing exceptional recreational or ecological value. 193
Antidegradation reviews shall be required for any activity 194
resulting in a perceptible change in ambient chemical or 195
biological quality on waters identified as possessing exceptional 196
recreational or ecological value. Allowances shall be made for 197
existing sources to retain their current permit limits with no 198
requirement to demonstrate technical, social, and economic need. 199
(5) The director shall establish reasonable protocols for 201
completing technical, social, and economic need demonstrations 202
based on existing federal guidance and on input from the 203
department of development, the regulated community, and the 204
general public. 205
(B) Effluent limitations established by the director for 207
any existing source in any permit issued under division (J) of 208
section 6111.03 of the Revised Code prior to the effective date 209
of this section JULY 1, 1993, shall continue in effect unless the 211
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permit is modified by the director. A discharger seeking 212
modification of antidegradation-based limitations that were based 213
on existing quality of discharge when the permit was issued shall 214
apply to the director for modification of the permit, consistent 215
with rules adopted under division (A) of this section, not later 216
than one hundred eighty days after the effective date of this 217
section JULY 1, 1993. If the permittee has filed such a timely 218
application for modification, the director shall not pursue 220
administrative or judicial enforcement actions for violations of 221
antidegradation-based limitations based on the existing quality 222
of effluent that occur after the effective date of this section 224
JULY 1, 1993.
(C) A HISTORICALLY CHANNELIZED WATERCOURSE PROVIDES 226
TECHNICAL, SOCIAL, AND ECONOMIC BENEFITS. THEREFORE, WITH REGARD 227
TO A HISTORICALLY CHANNELIZED WATERCOURSE, THE DIRECTOR SHALL NOT 228
REQUIRE FURTHER ANTIDEGRADATION REVIEW DURING THE REVIEW OF AN 229
APPLICATION FOR AND THE ISSUANCE OR DENIAL OF A PERMIT UNDER THIS 231
CHAPTER OR A WATER QUALITY CERTIFICATION UNDER SECTION 401 OF THE 232
FEDERAL WATER POLLUTION CONTROL ACT IF THE DIRECTOR FINDS, AFTER 234
PUBLIC NOTICE AND OPPORTUNITY FOR COMMENT, AND A PUBLIC HEARING 235
IF SIGNIFICANT PUBLIC INTEREST IS SHOWN, THAT ALL OF THE 236
FOLLOWING APPLY:
(1) WORK IS NECESSARY TO RESTORE OR MAINTAIN A DRAINAGE OR 239
OTHER IMPROVEMENT PROVIDED BY A HISTORICALLY CHANNELIZED
WATERCOURSE. 240
(2) THE WORK IS SUBJECT TO REQUIREMENTS ESTABLISHED UNDER 243
SECTION 1515.08 OF THE REVISED CODE OR IS THE SUBJECT OF A 245
PETITION FILED UNDER SECTION 6131.04 OR 6133.02 OF THE REVISED 248
CODE.
(3) WITHOUT THE WORK, FLOODING THREATENS PUBLIC HEALTH AND 251
SAFETY OR MAY RESULT IN SIGNIFICANT DAMAGE TO PUBLIC OR PRIVATE 252
PROPERTY.
(4) THE WORK WILL NOT RESULT IN THE LOSS OF DESIGNATED OR 254
EXISTING BENEFICIAL USES AS THOSE USES ARE DESCRIBED IN RULES 255
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ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE. 258
(5) THE WORK WILL NOT HARM OR INTERFERE WITH THE 260
PROTECTION OF FEDERAL OR STATE DESIGNATED ENDANGERED SPECIES. 262
(6) THE HISTORICALLY CHANNELIZED WATERCOURSE IS NOT 264
DESIGNATED AS COLDWATER HABITAT, EXCEPTIONAL WARMWATER HABITAT, 265
OR A STATE RESOURCE WATER IN RULES ADOPTED UNDER SECTION 6111.041 267
OF THE REVISED CODE. 268
(7) IF INFORMATION IS AVAILABLE CONCERNING RESIDENT 270
FISHERY OR MACROINVERTEBRATE COMMUNITIES, OR BOTH, IN THE 271
HISTORICALLY CHANNELIZED WATERCOURSE, THE HISTORICALLY 272
CHANNELIZED WATERCOURSE DOES NOT SUPPORT A PARTICULARLY DIVERSE 273
OR UNIQUE WARMWATER HABITAT AS THAT TERM IS DEFINED IN RULES 274
ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE. 277
(D) As used in this section: 279
(1) "Existing sources" means any treatment works that were 281
built and operational under the terms of an NPDES permit prior to 282
the effective date of this section JULY 1, 1993, but does not 285
include expansions or upgrades of existing treatment works 286
authorized in rules adopted under section 6111.03 of the Revised 287
Code after that date. 288
(2) "Appropriate total maximum daily load procedures" 290
means the procedures, policies, and guidelines used by the 291
director prior to the effective date of this section JULY 1, 293
1993, or subsequent revisions to those procedures established in 295
rules adopted in accordance with Chapter 119. of the Revised 296
Code.
(3) "Antidegradation review" means the consideration by 298
the director of the technical, social, and economic need 299
demonstration completed by any person requesting to lower water 300
quality as provided in this section, including the public notice 301
of the application and, at the discretion of the director, a 302
public hearing on it. 303
Section 2. That existing sections 6111.01 and 6111.12 of 305
the Revised Code are hereby repealed. 306