As Reported by House Energy and Environment Committee 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
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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
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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 THE 118
PORTION OF A WATERCOURSE ON WHICH AN IMPROVEMENT, AS DEFINED IN 119
DIVISIONS (C)(2) TO (4) OF SECTION 6131.01 OF THE REVISED CODE,
WAS CONSTRUCTED PURSUANT TO CHAPTER 1515., 6131., OR 6133. OF THE 120
REVISED CODE OR A SIMILAR STATE LAW THAT PRECEDED ANY OF THOSE 121
CHAPTERS AND AUTHORIZED SUCH AN IMPROVEMENT. 122
Sec. 6111.12. (A) The director of environmental 131
protection shall establish an antidegradation policy applicable 132
to surface waters of the state pursuant to applicable federal 133
laws and regulations. The purpose of the policy shall be to 134
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maintain levels of water quality that are currently better than 135
prescribed by applicable standards except in situations when a 136
need to allow a lower level of water quality is demonstrated 137
based on technical, social, and economic criteria. Not later 138
than March 31, 1994, the director shall revise the existing 139
antidegradation policy established in rules adopted under section 140
6111.041 of the Revised Code and revise any necessary 141
implementation procedures to conform them to the following 142
principles and any mandatory regulations adopted under the 144
"Federal Water Pollution Control Act":
(1) The use of existing effluent quality as a method of 146
calculating antidegradation-based limits shall be imposed only to 147
the extent that the use is explicitly required by federal law or 148
regulation as the only means available to implement 149
antidegradation. 150
(2) No degradation shall be allowed in waters for any 152
pollutant that currently does not meet applicable standards. For 153
all remaining waters, there shall be provisions requiring federal 154
antidegradation requirements to be met and provisions ensuring 155
that waters of exceptional recreational or ecological value are 156
maintained as high quality resources for future generations. 157
There shall be at least two categories of surface waters 158
identified in the state for that purpose and for the purpose of 159
establishing priorities for the administrative and technical 160
resources expended on antidegradation reviews. 161
(3) Whenever current ambient water quality is determined 163
to be of a higher quality than prescribed in the standards, on a 164
pollutant-by-pollutant basis, and the water body lacks 165
exceptional recreational or ecological value, the director may 166
allocate to existing sources eighty per cent of the pollutant 167
assimilative capacity as determined by appropriate total maximum 168
daily load procedures without further antidegradation review. The 170
permittee for any existing source may receive an effluent
limitation based on not more than one hundred per cent of the 171
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mass or concentration levels necessary to meet applicable water 172
quality in the receiving water body as determined by appropriate 173
total maximum daily load procedures, provided that there has been 174
a satisfactory demonstration of the need to allow lower water 175
quality based on technical, social, and economic criteria and the 176
action is preceded by a public notice. Sources other than 177
existing sources that result in ten per cent or greater change, 178
that is, degradation, of ambient chemical water quality shall 179
require a demonstration of technical, social, and economic need 180
and shall be the subject of a public notice. 181
(4) Degradation of waters identified as possessing 183
exceptional recreational or ecologic ECOLOGICAL value shall be 184
determined through an analysis of the expected perceptible change 186
in ambient concentrations of pollutant or alternatively through 187
an analysis of the expected change in the biological condition of 188
the water body. Either determination shall constitute a lowering 189
of water quality and shall require an antidegradation review. 190
The director shall establish, by rules adopted in accordance with 191
Chapter 119. of the Revised Code, a definition of perceptible 192
change that shall be applicable to those waters identified in 193
rule as possessing exceptional recreational or ecological value. 194
Antidegradation reviews shall be required for any activity 195
resulting in a perceptible change in ambient chemical or 196
biological quality on waters identified as possessing exceptional 197
recreational or ecological value. Allowances shall be made for 198
existing sources to retain their current permit limits with no 199
requirement to demonstrate technical, social, and economic need. 200
(5) The director shall establish reasonable protocols for 202
completing technical, social, and economic need demonstrations 203
based on existing federal guidance and on input from the 204
department of development, the regulated community, and the 205
general public. 206
(B) Effluent limitations established by the director for 208
any existing source in any permit issued under division (J) of 209
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section 6111.03 of the Revised Code prior to the effective date 210
of this section JULY 1, 1993, shall continue in effect unless the 212
permit is modified by the director. A discharger seeking 213
modification of antidegradation-based limitations that were based 214
on existing quality of discharge when the permit was issued shall 215
apply to the director for modification of the permit, consistent 216
with rules adopted under division (A) of this section, not later 217
than one hundred eighty days after the effective date of this 218
section JULY 1, 1993. If the permittee has filed such a timely 219
application for modification, the director shall not pursue 221
administrative or judicial enforcement actions for violations of 222
antidegradation-based limitations based on the existing quality 223
of effluent that occur after the effective date of this section 225
JULY 1, 1993.
(C) A HISTORICALLY CHANNELIZED WATERCOURSE PROVIDES 227
TECHNICAL, SOCIAL, AND ECONOMIC BENEFITS. THEREFORE, WITH REGARD 228
TO A HISTORICALLY CHANNELIZED WATERCOURSE, THE DIRECTOR SHALL NOT 229
REQUIRE FURTHER ANTIDEGRADATION REVIEW DURING THE REVIEW OF AN 230
APPLICATION FOR AND THE ISSUANCE OR DENIAL OF A PERMIT UNDER THIS 232
CHAPTER OR A WATER QUALITY CERTIFICATION UNDER SECTION 401 OF THE 233
FEDERAL WATER POLLUTION CONTROL ACT IF THE DIRECTOR FINDS, AFTER 235
PUBLIC NOTICE AND OPPORTUNITY FOR COMMENT, AND A PUBLIC HEARING 236
IF SIGNIFICANT PUBLIC INTEREST IS SHOWN, THAT ALL OF THE 237
FOLLOWING APPLY:
(1) WORK IS NECESSARY TO RESTORE OR MAINTAIN A DRAINAGE OR 240
OTHER IMPROVEMENT PROVIDED BY A HISTORICALLY CHANNELIZED
WATERCOURSE. 241
(2) THE WORK IS PERFORMED PURSUANT TO SECTION 1515.08 OF 243
THE REVISED CODE OR A PETITION FILED UNDER SECTION 6131.04 OR 246
6133.02 OF THE REVISED CODE. 248
(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
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EXISTING BENEFICIAL USES AS THOSE USES ARE DESCRIBED IN RULES 255
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 OR 261
THREATENED 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
(8) PLANS FOR THE WORK HAVE BEEN SUBMITTED TO THE 279
APPLICABLE SOIL AND WATER CONSERVATION DISTRICT ORGANIZED UNDER 280
CHAPTER 1515. OF THE REVISED CODE.
(9) A STORM WATER RUNOFF PLAN HAS BEEN DEVELOPED FOR THE 282
WATERSHED PRIOR TO OR DURING PLANNING AND DESIGN OF THE WORK AND 284
THE WORK IS CONSISTENT WITH THE PLAN.
(D) As used in this section: 286
(1) "Existing sources" means any treatment works that were 288
built and operational under the terms of an NPDES permit prior to 289
the effective date of this section JULY 1, 1993, but does not 292
include expansions or upgrades of existing treatment works 293
authorized in rules adopted under section 6111.03 of the Revised 294
Code after that date. 295
(2) "Appropriate total maximum daily load procedures" 297
means the procedures, policies, and guidelines used by the 298
director prior to the effective date of this section JULY 1, 300
1993, or subsequent revisions to those procedures established in 302
rules adopted in accordance with Chapter 119. of the Revised 303
Code.
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(3) "Antidegradation review" means the consideration by 305
the director of the technical, social, and economic need 306
demonstration completed by any person requesting to lower water 307
quality as provided in this section, including the public notice 308
of the application and, at the discretion of the director, a 309
public hearing on it. 310
Section 2. That existing sections 6111.01 and 6111.12 of 312
the Revised Code are hereby repealed. 313