As Passed by the Senate                       1            

123rd General Assembly                                             4            

   Regular Session                               Am. S. B. No. 20  5            

      1999-2000                                                    6            


     SENATORS CUPP-WHITE-WACHTMANN-CARNES-MUMPER-NEIN-LATTA-       8            

                        ARMBRUSTER-DRAKE                           9            


_________________________________________________________________   11           

                          A   B I L L                                           

             To amend sections 6111.01 and 6111.12 of the Revised  13           

                Code to declare, for purposes of the state         14           

                antidegradation statute, that a historically                    

                channelized watercourse provides technical,        15           

                social, and economic benefits and to preclude the  16           

                Director of Environmental Protection from                       

                requiring further antidegradation review upon      17           

                making specified findings, including a finding                  

                that work is necessary to restore or maintain      18           

                such a watercourse.                                             




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        20           

      Section 1.  That sections 6111.01 and 6111.12 of the         22           

Revised Code be amended to read as follows:                        23           

      Sec. 6111.01.  As used in Chapter 6111. of the Revised Code  33           

THIS CHAPTER:                                                                   

      (A)  "Pollution" means the placing of any sewage,            35           

industrial waste, or other wastes in any waters of the state.      36           

      (B)  "Sewage" means any liquid waste containing animal or    38           

vegetable matter in suspension or solution, and may include        39           

household wastes as commonly discharged from residences and from   40           

commercial, institutional, or similar facilities.                  41           

      (C)  "Industrial waste" means any liquid, gaseous, or solid  43           

waste substance resulting from any process of industry,            44           

manufacture, trade, or business, or from the development,          45           

processing, or recovery of any natural resource, together with     46           

                                                          2      


                                                                 
such sewage as is present.                                         47           

      (D)  "Other wastes" means garbage, refuse, decayed wood,     49           

sawdust, shavings, bark, and other wood debris, lime, sand,        50           

ashes, offal, night soil, oil, tar, coal dust, dredged or fill     51           

material, or silt, other substances that are not sewage or         52           

industrial waste, and any other "pollutants" or "toxic             53           

pollutants" as defined in the "Federal Water Pollution Control     54           

Act" that are not sewage or industrial waste.                      55           

      (E)  "Sewerage system" means pipelines or conduits, pumping  57           

stations, and force mains, and all other constructions, devices,   58           

appurtenances, and facilities used for collecting or conducting    59           

water-borne sewage, industrial waste, or other wastes to a point   60           

of disposal or treatment, but does not include plumbing fixtures,  61           

building drains and subdrains, building sewers, and building       62           

storm sewers.                                                      63           

      (F)  "Treatment works" means any plant, disposal field,      65           

lagoon, dam, pumping station, building sewer connected directly    66           

to treatment works, incinerator, or other works used for the       67           

purpose of treating, stabilizing, or holding sewage, industrial    68           

waste, or other wastes, except as otherwise defined.               69           

      (G)  "Disposal system" means a system for disposing of       71           

sewage, industrial waste, or other wastes, and includes sewerage   72           

systems and treatment works.                                       73           

      (H)  "Waters of the state" means all streams, lakes, ponds,  75           

marshes, watercourses, waterways, wells, springs, irrigation       76           

systems, drainage systems, and all other bodies or accumulations   77           

of water, surface and underground, natural or artificial,          78           

regardless of the depth of the strata in which underground water   79           

is located, which THAT are situated wholly or partly within, or    80           

border upon, this state, or are within its jurisdiction, except    82           

those private waters which THAT do not combine or effect a         83           

junction with natural surface or underground waters.               85           

      (I)  "Person" means the state, any municipal corporation,    87           

ANY political subdivision of the state, ANY person as defined in   88           

                                                          3      


                                                                 
section 1.59 of the Revised Code, ANY interstate body created by   89           

compact, or the federal government or any department, agency, or   90           

instrumentality thereof.                                           91           

      (J)  "Industrial water pollution control facility" means     93           

any disposal system or any treatment works, pretreatment works,    94           

appliance, equipment, machinery, pipeline or conduit, pumping      95           

station, force main, or installation constructed, used, or placed  96           

in operation primarily for the purpose of collecting or            97           

conducting industrial waste to a point of disposal or treatment;   98           

reducing, controlling, or eliminating water pollution caused by    99           

industrial waste; or for reducing, controlling, or eliminating     100          

the discharge into a disposal system of industrial waste or what   101          

would be industrial waste if discharged into the waters of the     102          

state.                                                             103          

      (K)  "Schedule of compliance" means a schedule of remedial   105          

measures including an enforceable sequence of actions or           106          

operations leading to compliance with standards and rules adopted  107          

under sections 6111.041 and 6111.042 of the Revised Code or        108          

compliance with terms and conditions of permits set under          109          

division (J) of section 6111.03 of the Revised Code.               110          

      (L)  "Federal Water Pollution Control Act" means the         112          

"Federal Water Pollution Control Act Amendments of 1972," 86       113          

Stat. 886, 33 U.S.C.A. 1251, as amended by the "Clean Water Act    114          

of 1977," 91 Stat. 1566, 33 U.S.C.A. 1251.                         115          

      (M)  "HISTORICALLY CHANNELIZED WATERCOURSE" MEANS A          118          

WATERCOURSE OR PORTION OF A WATERCOURSE THAT HAS BEEN THE SUBJECT  119          

OF AN IMPROVEMENT, AS DEFINED IN DIVISIONS (C)(2) TO (4) OF        120          

SECTION 6131.01 OF THE REVISED CODE, FOR AT LEAST TWENTY YEARS.    123          

      Sec. 6111.12.  (A)  The director of environmental            132          

protection shall establish an antidegradation policy applicable    133          

to surface waters of the state pursuant to applicable federal      134          

laws and regulations.  The purpose of the policy shall be to       135          

maintain levels of water quality that are currently better than    136          

prescribed by applicable standards except in situations when a     137          

                                                          4      


                                                                 
need to allow a lower level of water quality is demonstrated       138          

based on technical, social, and economic criteria.  Not later      139          

than March 31, 1994, the director shall revise the existing        140          

antidegradation policy established in rules adopted under section  141          

6111.041 of the Revised Code and revise any necessary              142          

implementation procedures to conform them to the following         143          

principles and any mandatory regulations adopted under the         145          

"Federal Water Pollution Control Act":                                          

      (1)  The use of existing effluent quality as a method of     147          

calculating antidegradation-based limits shall be imposed only to  148          

the extent that the use is explicitly required by federal law or   149          

regulation as the only means available to implement                150          

antidegradation.                                                   151          

      (2)  No degradation shall be allowed in waters for any       153          

pollutant that currently does not meet applicable standards.  For  154          

all remaining waters, there shall be provisions requiring federal  155          

antidegradation requirements to be met and provisions ensuring     156          

that waters of exceptional recreational or ecological value are    157          

maintained as high quality resources for future generations.       158          

There shall be at least two categories of surface waters           159          

identified in the state for that purpose and for the purpose of    160          

establishing priorities for the administrative and technical       161          

resources expended on antidegradation reviews.                     162          

      (3)  Whenever current ambient water quality is determined    164          

to be of a higher quality than prescribed in the standards, on a   165          

pollutant-by-pollutant basis, and the water body lacks             166          

exceptional recreational or ecological value, the director may     167          

allocate to existing sources eighty per cent of the pollutant      168          

assimilative capacity as determined by appropriate total maximum   169          

daily load procedures without further antidegradation review. The  171          

permittee for any existing source may receive an effluent                       

limitation based on not more than one hundred per cent of the      172          

mass or concentration levels necessary to meet applicable water    173          

quality in the receiving water body as determined by appropriate   174          

                                                          5      


                                                                 
total maximum daily load procedures, provided that there has been  175          

a satisfactory demonstration of the need to allow lower water      176          

quality based on technical, social, and economic criteria and the  177          

action is preceded by a public notice.  Sources other than         178          

existing sources that result in ten per cent or greater change,    179          

that is, degradation, of ambient chemical water quality shall      180          

require a demonstration of technical, social, and economic need    181          

and shall be the subject of a public notice.                       182          

      (4)  Degradation of waters identified as possessing          184          

exceptional recreational or ecologic ECOLOGICAL value shall be     185          

determined through an analysis of the expected perceptible change  187          

in ambient concentrations of pollutant or alternatively through    188          

an analysis of the expected change in the biological condition of  189          

the water body.  Either determination shall constitute a lowering  190          

of water quality and shall require an antidegradation review.      191          

The director shall establish, by rules adopted in accordance with  192          

Chapter 119. of the Revised Code, a definition of perceptible      193          

change that shall be applicable to those waters identified in      194          

rule as possessing exceptional recreational or ecological value.   195          

Antidegradation reviews shall be required for any activity         196          

resulting in a perceptible change in ambient chemical or           197          

biological quality on waters identified as possessing exceptional  198          

recreational or ecological value.  Allowances shall be made for    199          

existing sources to retain their current permit limits with no     200          

requirement to demonstrate technical, social, and economic need.   201          

      (5)  The director shall establish reasonable protocols for   203          

completing technical, social, and economic need demonstrations     204          

based on existing federal guidance and on input from the           205          

department of development, the regulated community, and the        206          

general public.                                                    207          

      (B)  Effluent limitations established by the director for    209          

any existing source in any permit issued under division (J) of     210          

section 6111.03 of the Revised Code prior to the effective date    211          

of this section JULY 1, 1993, shall continue in effect unless the  213          

                                                          6      


                                                                 
permit is modified by the director.  A discharger seeking          214          

modification of antidegradation-based limitations that were based  215          

on existing quality of discharge when the permit was issued shall  216          

apply to the director for modification of the permit, consistent   217          

with rules adopted under division (A) of this section, not later   218          

than one hundred eighty days after the effective date of this      219          

section JULY 1, 1993.  If the permittee has filed such a timely    220          

application for modification, the director shall not pursue        222          

administrative or judicial enforcement actions for violations of   223          

antidegradation-based limitations based on the existing quality    224          

of effluent that occur after the effective date of this section    226          

JULY 1, 1993.                                                                   

      (C)  A HISTORICALLY CHANNELIZED WATERCOURSE PROVIDES         228          

TECHNICAL, SOCIAL, AND ECONOMIC BENEFITS.  THEREFORE, WITH REGARD  229          

TO A HISTORICALLY CHANNELIZED WATERCOURSE, THE DIRECTOR SHALL NOT  230          

REQUIRE FURTHER ANTIDEGRADATION REVIEW DURING THE REVIEW OF AN     231          

APPLICATION FOR AND THE ISSUANCE OR DENIAL OF A PERMIT UNDER THIS  233          

CHAPTER OR A WATER QUALITY CERTIFICATION UNDER SECTION 401 OF THE  234          

FEDERAL WATER POLLUTION CONTROL ACT IF THE DIRECTOR FINDS, AFTER   236          

PUBLIC NOTICE AND OPPORTUNITY FOR COMMENT, AND A PUBLIC HEARING    237          

IF SIGNIFICANT PUBLIC INTEREST IS SHOWN, THAT ALL OF THE           238          

FOLLOWING APPLY:                                                                

      (1)  WORK IS NECESSARY TO RESTORE OR MAINTAIN A DRAINAGE OR  241          

OTHER IMPROVEMENT PROVIDED BY A HISTORICALLY CHANNELIZED                        

WATERCOURSE.                                                       242          

      (2)  THE WORK IS SUBJECT TO REQUIREMENTS ESTABLISHED UNDER   245          

SECTION 1515.08 OF THE REVISED CODE OR IS THE SUBJECT OF A         247          

PETITION FILED UNDER SECTION 6131.04 OR 6133.02 OF THE REVISED     250          

CODE.                                                                           

      (3)  WITHOUT THE WORK, FLOODING THREATENS PUBLIC HEALTH AND  253          

SAFETY OR MAY RESULT IN SIGNIFICANT DAMAGE TO PUBLIC OR PRIVATE    254          

PROPERTY.                                                                       

      (4)  THE WORK WILL NOT RESULT IN THE LOSS OF DESIGNATED OR   256          

EXISTING BENEFICIAL USES AS THOSE USES ARE DESCRIBED IN RULES      257          

                                                          7      


                                                                 
ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE.                260          

      (5)  THE WORK WILL NOT HARM OR INTERFERE WITH THE            262          

PROTECTION OF FEDERAL OR STATE DESIGNATED ENDANGERED SPECIES.      264          

      (6)  THE HISTORICALLY CHANNELIZED WATERCOURSE IS NOT         266          

DESIGNATED AS COLDWATER HABITAT, EXCEPTIONAL WARMWATER HABITAT,    267          

OR A STATE RESOURCE WATER IN RULES ADOPTED UNDER SECTION 6111.041  269          

OF THE REVISED CODE.                                               270          

      (7)  IF INFORMATION IS AVAILABLE CONCERNING RESIDENT         272          

FISHERY OR MACROINVERTEBRATE COMMUNITIES, OR BOTH, IN THE          273          

HISTORICALLY CHANNELIZED WATERCOURSE, THE HISTORICALLY             274          

CHANNELIZED WATERCOURSE DOES NOT SUPPORT A PARTICULARLY DIVERSE    275          

OR UNIQUE WARMWATER HABITAT AS THAT TERM IS DEFINED IN RULES       276          

ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE.                279          

      (8)  PLANS FOR THE WORK HAVE BEEN SUBMITTED TO THE           281          

APPLICABLE SOIL AND WATER CONSERVATION DISTRICT ORGANIZED UNDER    282          

CHAPTER 1515. OF THE REVISED CODE.                                              

      (9)  A STORM WATER RUNOFF PLAN HAS BEEN DEVELOPED FOR THE    284          

WATERSHED DURING PLANNING AND DESIGN OF THE WORK.                  285          

      (D)  As used in this section:                                287          

      (1)  "Existing sources" means any treatment works that were  289          

built and operational under the terms of an NPDES permit prior to  290          

the effective date of this section JULY 1, 1993, but does not      293          

include expansions or upgrades of existing treatment works         294          

authorized in rules adopted under section 6111.03 of the Revised   295          

Code after that date.                                              296          

      (2)  "Appropriate total maximum daily load procedures"       298          

means the procedures, policies, and guidelines used by the         299          

director prior to the effective date of this section JULY 1,       301          

1993, or subsequent revisions to those procedures established in   303          

rules adopted in accordance with Chapter 119. of the Revised       304          

Code.                                                                           

      (3)  "Antidegradation review" means the consideration by     306          

the director of the technical, social, and economic need           307          

demonstration completed by any person requesting to lower water    308          

                                                          8      


                                                                 
quality as provided in this section, including the public notice   309          

of the application and, at the discretion of the director, a       310          

public hearing on it.                                              311          

      Section 2.  That existing sections 6111.01 and 6111.12 of    313          

the Revised Code are hereby repealed.                              314