As Passed by the House 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-REPRESENTATIVES BRADING-CORE-KREBS-HARRIS- 9
METZGER-HAINES-BUEHRER-DAMSCHRODER-JORDAN-TERWILLEGER- 10
DISTEL-HARTNETT-TAYLOR-OGG-HOUSEHOLDER-STAPLETON-HOLLISTER- 11
BUCHY-HOOPS-WILLIAMS-NETZLEY-VESPER-WILLAMOWSKI-HOOD 12
_________________________________________________________________ 14
A B I L L
To amend sections 6111.01, 6111.12, and 6131.14 of 16
the Revised Code to declare, for purposes of the 18
state antidegradation statute, that a
historically channelized watercourse provides 19
technical, social, and economic benefits, to
preclude the Director of Environmental Protection 20
from requiring further antidegradation review 21
upon making specified findings, including a
finding that work is necessary to restore or 22
maintain such a watercourse, and to require, 23
where appropriate, the Director of Natural
Resources and, if applicable, the Director of 24
Transportation and the board of directors of a
conservancy district to make recommendations to a 25
county engineer regarding the use of best 26
managment practices in the construction of an
improvement under the ditch statutes. 27
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 29
Section 1. That sections 6111.01, 6111.12, and 6131.14 of 31
the Revised Code be amended to read as follows: 33
Sec. 6111.01. As used in Chapter 6111. of the Revised Code 43
THIS CHAPTER:
2
(A) "Pollution" means the placing of any sewage, 45
industrial waste, or other wastes in any waters of the state. 46
(B) "Sewage" means any liquid waste containing animal or 48
vegetable matter in suspension or solution, and may include 49
household wastes as commonly discharged from residences and from 50
commercial, institutional, or similar facilities. 51
(C) "Industrial waste" means any liquid, gaseous, or solid 53
waste substance resulting from any process of industry, 54
manufacture, trade, or business, or from the development, 55
processing, or recovery of any natural resource, together with 56
such sewage as is present. 57
(D) "Other wastes" means garbage, refuse, decayed wood, 59
sawdust, shavings, bark, and other wood debris, lime, sand, 60
ashes, offal, night soil, oil, tar, coal dust, dredged or fill 61
material, or silt, other substances that are not sewage or 62
industrial waste, and any other "pollutants" or "toxic 63
pollutants" as defined in the "Federal Water Pollution Control 64
Act" that are not sewage or industrial waste. 65
(E) "Sewerage system" means pipelines or conduits, pumping 67
stations, and force mains, and all other constructions, devices, 68
appurtenances, and facilities used for collecting or conducting 69
water-borne sewage, industrial waste, or other wastes to a point 70
of disposal or treatment, but does not include plumbing fixtures, 71
building drains and subdrains, building sewers, and building 72
storm sewers. 73
(F) "Treatment works" means any plant, disposal field, 75
lagoon, dam, pumping station, building sewer connected directly 76
to treatment works, incinerator, or other works used for the 77
purpose of treating, stabilizing, or holding sewage, industrial 78
waste, or other wastes, except as otherwise defined. 79
(G) "Disposal system" means a system for disposing of 81
sewage, industrial waste, or other wastes, and includes sewerage 82
systems and treatment works. 83
(H) "Waters of the state" means all streams, lakes, ponds, 85
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marshes, watercourses, waterways, wells, springs, irrigation 86
systems, drainage systems, and all other bodies or accumulations 87
of water, surface and underground, natural or artificial, 88
regardless of the depth of the strata in which underground water 89
is located, which THAT are situated wholly or partly within, or 90
border upon, this state, or are within its jurisdiction, except 92
those private waters which THAT do not combine or effect a 93
junction with natural surface or underground waters. 95
(I) "Person" means the state, any municipal corporation, 97
ANY political subdivision of the state, ANY person as defined in 98
section 1.59 of the Revised Code, ANY interstate body created by 99
compact, or the federal government or any department, agency, or 100
instrumentality thereof. 101
(J) "Industrial water pollution control facility" means 103
any disposal system or any treatment works, pretreatment works, 104
appliance, equipment, machinery, pipeline or conduit, pumping 105
station, force main, or installation constructed, used, or placed 106
in operation primarily for the purpose of collecting or 107
conducting industrial waste to a point of disposal or treatment; 108
reducing, controlling, or eliminating water pollution caused by 109
industrial waste; or for reducing, controlling, or eliminating 110
the discharge into a disposal system of industrial waste or what 111
would be industrial waste if discharged into the waters of the 112
state. 113
(K) "Schedule of compliance" means a schedule of remedial 115
measures including an enforceable sequence of actions or 116
operations leading to compliance with standards and rules adopted 117
under sections 6111.041 and 6111.042 of the Revised Code or 118
compliance with terms and conditions of permits set under 119
division (J) of section 6111.03 of the Revised Code. 120
(L) "Federal Water Pollution Control Act" means the 122
"Federal Water Pollution Control Act Amendments of 1972," 86 123
Stat. 886, 33 U.S.C.A. 1251, as amended by the "Clean Water Act 124
of 1977," 91 Stat. 1566, 33 U.S.C.A. 1251. 125
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(M) "HISTORICALLY CHANNELIZED WATERCOURSE" MEANS THE 128
PORTION OF A WATERCOURSE ON WHICH AN IMPROVEMENT, AS DEFINED IN 129
DIVISIONS (C)(2) TO (4) OF SECTION 6131.01 OF THE REVISED CODE,
WAS CONSTRUCTED PURSUANT TO CHAPTER 1515., 6131., OR 6133. OF THE 130
REVISED CODE OR A SIMILAR STATE LAW THAT PRECEDED ANY OF THOSE 131
CHAPTERS AND AUTHORIZED SUCH AN IMPROVEMENT. 132
Sec. 6111.12. (A) The director of environmental 141
protection shall establish an antidegradation policy applicable 142
to surface waters of the state pursuant to applicable federal 143
laws and regulations. The purpose of the policy shall be to 144
maintain levels of water quality that are currently better than 145
prescribed by applicable standards except in situations when a 146
need to allow a lower level of water quality is demonstrated 147
based on technical, social, and economic criteria. Not later 148
than March 31, 1994, the director shall revise the existing 149
antidegradation policy established in rules adopted under section 150
6111.041 of the Revised Code and revise any necessary 151
implementation procedures to conform them to the following 152
principles and any mandatory regulations adopted under the 154
"Federal Water Pollution Control Act":
(1) The use of existing effluent quality as a method of 156
calculating antidegradation-based limits shall be imposed only to 157
the extent that the use is explicitly required by federal law or 158
regulation as the only means available to implement 159
antidegradation. 160
(2) No degradation shall be allowed in waters for any 162
pollutant that currently does not meet applicable standards. For 163
all remaining waters, there shall be provisions requiring federal 164
antidegradation requirements to be met and provisions ensuring 165
that waters of exceptional recreational or ecological value are 166
maintained as high quality resources for future generations. 167
There shall be at least two categories of surface waters 168
identified in the state for that purpose and for the purpose of 169
establishing priorities for the administrative and technical 170
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resources expended on antidegradation reviews. 171
(3) Whenever current ambient water quality is determined 173
to be of a higher quality than prescribed in the standards, on a 174
pollutant-by-pollutant basis, and the water body lacks 175
exceptional recreational or ecological value, the director may 176
allocate to existing sources eighty per cent of the pollutant 177
assimilative capacity as determined by appropriate total maximum 178
daily load procedures without further antidegradation review. The 180
permittee for any existing source may receive an effluent
limitation based on not more than one hundred per cent of the 181
mass or concentration levels necessary to meet applicable water 182
quality in the receiving water body as determined by appropriate 183
total maximum daily load procedures, provided that there has been 184
a satisfactory demonstration of the need to allow lower water 185
quality based on technical, social, and economic criteria and the 186
action is preceded by a public notice. Sources other than 187
existing sources that result in ten per cent or greater change, 188
that is, degradation, of ambient chemical water quality shall 189
require a demonstration of technical, social, and economic need 190
and shall be the subject of a public notice. 191
(4) Degradation of waters identified as possessing 193
exceptional recreational or ecologic ECOLOGICAL value shall be 194
determined through an analysis of the expected perceptible change 196
in ambient concentrations of pollutant or alternatively through 197
an analysis of the expected change in the biological condition of 198
the water body. Either determination shall constitute a lowering 199
of water quality and shall require an antidegradation review. 200
The director shall establish, by rules adopted in accordance with 201
Chapter 119. of the Revised Code, a definition of perceptible 202
change that shall be applicable to those waters identified in 203
rule as possessing exceptional recreational or ecological value. 204
Antidegradation reviews shall be required for any activity 205
resulting in a perceptible change in ambient chemical or 206
biological quality on waters identified as possessing exceptional 207
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recreational or ecological value. Allowances shall be made for 208
existing sources to retain their current permit limits with no 209
requirement to demonstrate technical, social, and economic need. 210
(5) The director shall establish reasonable protocols for 212
completing technical, social, and economic need demonstrations 213
based on existing federal guidance and on input from the 214
department of development, the regulated community, and the 215
general public. 216
(B) Effluent limitations established by the director for 218
any existing source in any permit issued under division (J) of 219
section 6111.03 of the Revised Code prior to the effective date 220
of this section JULY 1, 1993, shall continue in effect unless the 222
permit is modified by the director. A discharger seeking 223
modification of antidegradation-based limitations that were based 224
on existing quality of discharge when the permit was issued shall 225
apply to the director for modification of the permit, consistent 226
with rules adopted under division (A) of this section, not later 227
than one hundred eighty days after the effective date of this 228
section JULY 1, 1993. If the permittee has filed such a timely 229
application for modification, the director shall not pursue 231
administrative or judicial enforcement actions for violations of 232
antidegradation-based limitations based on the existing quality 233
of effluent that occur after the effective date of this section 235
JULY 1, 1993.
(C) A HISTORICALLY CHANNELIZED WATERCOURSE PROVIDES 237
TECHNICAL, SOCIAL, AND ECONOMIC BENEFITS. THEREFORE, WITH REGARD 238
TO A HISTORICALLY CHANNELIZED WATERCOURSE, THE DIRECTOR SHALL NOT 239
REQUIRE FURTHER ANTIDEGRADATION REVIEW DURING THE REVIEW OF AN 240
APPLICATION FOR AND THE ISSUANCE OR DENIAL OF A PERMIT UNDER THIS 242
CHAPTER OR A WATER QUALITY CERTIFICATION UNDER SECTION 401 OF THE 243
FEDERAL WATER POLLUTION CONTROL ACT IF THE DIRECTOR FINDS, AFTER 245
PUBLIC NOTICE AND OPPORTUNITY FOR COMMENT, AND A PUBLIC HEARING 246
IF SIGNIFICANT PUBLIC INTEREST IS SHOWN, THAT ALL OF THE 247
FOLLOWING APPLY:
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(1) WORK IS NECESSARY TO RESTORE OR MAINTAIN A DRAINAGE OR 250
OTHER IMPROVEMENT PROVIDED BY A HISTORICALLY CHANNELIZED
WATERCOURSE. 251
(2) THE WORK IS PERFORMED PURSUANT TO SECTION 1515.08 OF 253
THE REVISED CODE OR A PETITION FILED UNDER SECTION 6131.04 OR 256
6133.02 OF THE REVISED CODE. 258
(3) WITHOUT THE WORK, FLOODING THREATENS PUBLIC HEALTH AND 261
SAFETY OR MAY RESULT IN SIGNIFICANT DAMAGE TO PUBLIC OR PRIVATE 262
PROPERTY.
(4) THE WORK WILL NOT RESULT IN THE LOSS OF DESIGNATED OR 264
EXISTING BENEFICIAL USES AS THOSE USES ARE DESCRIBED IN RULES 265
ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE. 268
(5) THE WORK WILL NOT HARM OR INTERFERE WITH THE 270
PROTECTION OF FEDERAL OR STATE DESIGNATED ENDANGERED OR 271
THREATENED SPECIES. 272
(6) THE HISTORICALLY CHANNELIZED WATERCOURSE IS NOT 274
DESIGNATED AS COLDWATER HABITAT, EXCEPTIONAL WARMWATER HABITAT, 275
OR A STATE RESOURCE WATER IN RULES ADOPTED UNDER SECTION 6111.041 277
OF THE REVISED CODE. 278
(7) IF INFORMATION IS AVAILABLE CONCERNING RESIDENT 280
FISHERY OR MACROINVERTEBRATE COMMUNITIES, OR BOTH, IN THE 281
HISTORICALLY CHANNELIZED WATERCOURSE, THE HISTORICALLY 282
CHANNELIZED WATERCOURSE DOES NOT SUPPORT A PARTICULARLY DIVERSE 283
OR UNIQUE WARMWATER HABITAT AS THAT TERM IS DEFINED IN RULES 284
ADOPTED UNDER SECTION 6111.041 OF THE REVISED CODE. 287
(8) PLANS FOR THE WORK HAVE BEEN SUBMITTED TO THE 289
APPLICABLE SOIL AND WATER CONSERVATION DISTRICT ORGANIZED UNDER 290
CHAPTER 1515. OF THE REVISED CODE.
(9) A STORM WATER RUNOFF PLAN HAS BEEN DEVELOPED FOR THE 292
WATERSHED PRIOR TO OR DURING PLANNING AND DESIGN OF THE WORK AND 294
THE WORK IS CONSISTENT WITH THE PLAN.
(D) As used in this section: 296
(1) "Existing sources" means any treatment works that were 298
built and operational under the terms of an NPDES permit prior to 299
8
the effective date of this section JULY 1, 1993, but does not 302
include expansions or upgrades of existing treatment works 303
authorized in rules adopted under section 6111.03 of the Revised 304
Code after that date. 305
(2) "Appropriate total maximum daily load procedures" 307
means the procedures, policies, and guidelines used by the 308
director prior to the effective date of this section JULY 1, 310
1993, or subsequent revisions to those procedures established in 312
rules adopted in accordance with Chapter 119. of the Revised 313
Code.
(3) "Antidegradation review" means the consideration by 315
the director of the technical, social, and economic need 316
demonstration completed by any person requesting to lower water 317
quality as provided in this section, including the public notice 318
of the application and, at the discretion of the director, a 319
public hearing on it. 320
Sec. 6131.14. The clerk of the board of county 330
commissioners shall certify to the county engineer immediately, 331
after the requirements of section 6131.12 of the Revised Code 332
have been met, a copy of the findings and orders of the board of 333
county commissioners in favor of an improvement. The engineer 334
shall make the necessary survey for the proposed improvement. He 335
THE ENGINEER shall make plans for structures, maps showing the 336
location of the land proposed to be assessed, and profiles 338
showing the cuttings and gradient of the improvement and shall 339
make an estimate of the cost of the construction of the 340
improvement, which shall include actual construction cost, the 341
cost of engineering, and the cost of notices, publication, and 342
other incidental expenses. He THE ENGINEER shall recommend the 343
maintenance district in which the improvement shall be placed. 345
The assessment of the improvement for maintenance for one year 346
shall be added to the cost of construction in making the actual 347
assessment and shall be credited to the maintenance fund of the 348
district.
9
The county engineer shall set proper construction stakes 350
and shall note the intersection of the line of the improvement 351
with the apparent land boundaries of separate owners, township 352
and county lines, natural landmarks, road crossings, or other 353
lines or marks. He THE ENGINEER shall take and note any 354
necessary levels off the line of the improvement to determine the 355
area of the land subject to drainage. 357
The engineer shall also establish, at intervals of not less 359
than one in each mile, in the most practicable permanent form, 360
and in locations where destruction or disturbance is improbable, 361
bench marks from which the original levels of the improvement can 362
be established. The bench marks and all levels of the 363
improvement shall be based upon some established elevation of the 364
geological survey of the United States, if any, in the county, 365
and the relation of any assumed elevation used by the engineer in 366
his THE work upon any improvement to the elevation established by 368
the geological survey shall be accurately stated in his THE 369
ENGINEER'S report. The engineer shall make a plan of the work 370
proposed to be done, which shall show the grade, the depth, the 371
excavating to be done, the location of the permanent bench marks 372
and their actual elevation above or below the base elevation 373
used, and such other data as in the judgment of the engineer will 374
aid in retracing lines, levels, or other features of the 375
improvement. The plan shall indicate the profile and the nature 376
of the excavation.
As soon as the engineer has completed the maps, profiles, 378
and plans for the improvement, he THE ENGINEER shall transmit 379
copies thereof to the director of natural resources, the director 381
of transportation when a state highway is affected, and the board 382
of directors of any conservancy district within which any part of 383
the lands or streams affected by the proposed improvement may 384
lie. The director of natural resources, the director of 385
transportation, and the directors of the conservancy district 386
shall review the plans submitted and within thirty days file with 387
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the county engineer a report indicating approval or, in case that 388
approval cannot be given, a report with recommendations. 389
The approval or report with recommendations, WHICH, WHERE 391
APPROPRIATE, SHALL INCLUDE RECOMMENDATIONS REGARDING THE USE OF 393
BEST MANAGEMENT PRACTICES THAT ARE CONSISTENT WITH THE PRAYER OF 394
THE PETITION, shall be transmitted by the engineer to the board 396
of county commissioners, who shall take notice of the approval or 397
recommendations and shall authorize the engineer to make any 398
changes or alterations that in the judgment of the board are 399
necessary or desirable.
Upon receipt of approval of the plans by the director of 401
natural resources, the director of transportation, and the 402
directors of any conservancy districts affected, or upon 403
completion of any changes authorized by the board of county 404
commissioners, the engineer shall file with the clerk of the 405
board of county commissioners all maps, profiles, and plans as 406
provided by this section. 407
The engineer shall prepare specifications for the 409
construction of the improvement. The engineer shall specify a 410
width of temporary easement for construction purposes. The 411
specifications shall provide for spreading and leveling of spoil 412
banks and shall provide for erosion and sediment control through 413
the establishment of a sod or seeded strip not fewer than four 414
feet nor more than fifteen feet wide, measured at right angles to 415
the top of the ditch bank, on both sides of the ditch, except 416
where suitable vegetative cover exists. The strip or other such 417
controls shall be considered a part of the permanent improvement. 418
Sod or seeded strips established and maintained in excess of four 419
feet shall be compensated for by their removal from the taxable 420
valuation of the property of which they are a part. The engineer 421
shall make estimates of the cost of excavating and of the cost of 422
material and may divide the construction of the improvement into 423
construction areas as considered expedient. The engineer shall 424
make a note of all fences, floodgates, culverts, or bridges that 425
11
will be removed in constructing the improvement and of all 426
culverts or bridges that must be adjusted or the channel of which 427
must be enlarged to construct the improvement. 428
In estimating the cost of an improvement, the engineer may 430
include the cost of installing gates in fences on the reserved 431
right-of-way where needed to provide access for maintenance. The 432
gates shall be kept locked when requested by the owner and shall 433
be considered a part of the original improvement and subject to 434
maintenance as provided by sections 6137.01 to 6137.12 of the 435
Revised Code. The engineer shall make an estimate of the cost of 436
inspecting the work as it progresses and shall, with the 437
assistance of the prosecuting attorney, prepare forms for 438
contracts with bidders and forms of bid guaranties that meet the 439
requirements of section 153.54 of the Revised Code. Upon the 440
acceptance of the contract work, the engineer shall file with the 441
county recorder a property plat showing the general location of 442
the improvement and a statement describing the width of permanent 443
easement for maintenance as provided for in section 6137.12 of 444
the Revised Code. The engineer shall make an itemized bill of 445
the costs and expenses incurred in the proper discharge of duties 446
set forth in this section and shall file the maps, profiles, 447
plans, schedules, and reports with the clerk of the board of 448
county commissioners upon completing them. 449
Section 2. That existing sections 6111.01, 6111.12, and 451
6131.14 of the Revised Code are hereby repealed. 454