As Reported by the Senate Agriculture, Environment and Natural Resources Committee

129th General Assembly
Regular Session
2011-2012
Sub. H. B. No. 231


Representative Wachtmann 

Cosponsors: Representatives Boose, Peterson, Beck, Blair, Blessing, Brenner, Buchy, Damschroder, Dovilla, Hackett, Hall, Hottinger, Huffman, Johnson, Kozlowski, Maag, Martin, McClain, Newbold, Roegner, Sears, Slaby, Thompson, Young Speaker Batchelder 

Senators Grendell, Schaffer 



A BILL
To amend sections 1501.32, 1501.33, 1521.04, 1522.03, 1
and 1522.05, to enact sections 1522.10, 1522.101, 2
and 1522.11 to 1522.20, and to repeal section 3
1522.07 of the Revised Code to establish a program 4
for the issuance of permits for the withdrawal and 5
consumptive use of waters from the Lake Erie 6
basin.7


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

       Section 1.  That sections 1501.32, 1501.33, 1521.04, 1522.03, 8
and 1522.05 be amended and sections 1522.10, 1522.101, 1522.11, 9
1522.12, 1522.13, 1522.14, 1522.15, 1522.16, 1522.17, 1522.18, 10
1522.19, and 1522.20 of the Revised Code be enacted to read as 11
follows:12

       Sec. 1501.32.  (A) No person shall divert more than one 13
hundred thousand gallons per day of any waters of the state out of 14
the Lake Erie or Ohio river drainage basins to another basin 15
without having a permit to do so issued by the director of natural 16
resources. An application for such a permit shall be filed with 17
the director upon such forms as the director prescribes. The 18
application shall state the quantity of water to be diverted, the 19
purpose of the diversion, the life of the project for which the 20
water is to be diverted, and such other information as the 21
director may require by rule. Each application shall be 22
accompanied by a nonrefundable fee of one thousand dollars, which 23
shall be credited to the water management fund, which is hereby 24
created.25

       (B) The director shall not approve a permit application filed 26
under this section if the director determines that any of the 27
following applies:28

       (1) During the life of the project for which the water is to 29
be diverted, some or all of the water to be diverted will be 30
needed for use within the basin.31

       (2) The proposed diversion would endanger the public health, 32
safety, or welfare.33

       (3) The applicant has not demonstrated that the proposed 34
diversion is a reasonable and beneficial use and is necessary to 35
serve the applicant's present and future needs.36

       (4) The applicant has not demonstrated that reasonable 37
efforts have been made to develop and conserve water resources in 38
the importing basin and that further development of those 39
resources would engender overriding, adverse economic, social, or 40
environmental impacts.41

       (5) The proposed diversion is inconsistent with regional or 42
state water resources plans.43

       (6) The proposed diversion, alone or in combination with 44
other diversions and water losses, will have a significant adverse 45
impact on in-stream uses or on economic or ecological aspects of 46
water levels.47

       (7) The proposed diversion out of the Lake Erie watershed 48
does not qualify as an exception to the prohibition against 49
diversions from the great lakes basin that is established under 50
section 1522.01 of the Revised Code.51

       The director may hold public hearings upon any application 52
for a permit.53

       (C) Whenever the director receives an application under this 54
section to divert water out of the Lake Erie drainage basin, the 55
director shall notify the governors and premiers of the other 56
great lakes states and provinces, the appropriate water management 57
agencies of those states and provinces, and, when appropriate, the 58
international joint commission and shall solicit their comments 59
and concerns regarding the application. In the event of an 60
objection to the proposed diversion, the director shall consult 61
with the affected great lakes states and provinces to consider the 62
issues involved and seek mutually agreeable recommendations. 63
Before rendering a decision on the permit application, the 64
director shall consider the concerns, comments, and 65
recommendations of the other great lakes states and provinces and 66
the international joint commission, and, in accordance with 67
section 1109 of the "Water Resources Development Act of 1986," 100 68
Stat. 4230, 42 U.S.C.A. 1962d-20, the director shall not approve a 69
permit application for any diversion to which that section 70
pertains unless that diversion is approved by the governor of each 71
great lakes state as defined in section 1109(c) of that act.72

       (D) The director shall determine the period for which each 73
permit approved under this section will be valid and specify the 74
expiration date, but in no case shall a permit be valid beyond the 75
life of the project as stated in the application.76

       The director shall establish rules providing for the transfer 77
of permits. A permit may be transferred on the conditions that the 78
quantity of water diverted not be increased and that the purpose 79
of the diversion not be changed.80

       (E)(1) Within a time established by rule, the director shall 81
do one of the following:82

       (a) Notify the applicant that an application the applicant 83
filed under this section is approved or denied and, if denied, the 84
reason for denial;85

       (b) Notify the applicant of any modification necessary to 86
qualify the application for approval.87

       (2) Any person who receives notice of a denial or 88
modification under division (E)(1) of this section is entitled to 89
a hearing under Chapter 119. of the Revised Code if the person 90
sends a written request for a hearing to the director within 91
thirty days after the date on which the notice is mailed or 92
otherwise provided to the applicant.93

       (F) The director shall revoke a permit under this section 94
without a prior hearing if the director determines that the 95
quantity of water being diverted exceeds the quantity stated in 96
the permit application.97

       The director may suspend a permit if the director determines 98
that the continued diversion of water will endanger the public 99
health, safety, or welfare. Before suspending a permit, the 100
director shall make a reasonable attempt to notify the permittee 101
that the director intends to suspend the permit. If the attempt 102
fails, notification shall be given as soon as practicable 103
following the suspension. Within five days after the suspension, 104
the director shall provide the permittee an opportunity to be 105
heard and to present evidence that the continued diversion of 106
water will not endanger the public health, safety, or welfare.107

       If the director determines before the expiration date of a 108
suspended permit that the diversion of water can be resumed 109
without danger to the public health, safety, or welfare, the 110
director shall, upon request of the permittee, reinstate the 111
permit.112

       (G) Any six or more residents of this state may petition the 113
director for an investigation of a withdrawal of water resources 114
that they allege is in violation of a permit issued under this 115
section.116

       The petition shall identify the permittee and detail the 117
reasons why the petitioners believe that grounds exist for the 118
revocation or suspension of the permit under this section.119

       Upon receipt of the petition, the director shall send a copy 120
to the permittee and, within sixty days, make a determination 121
whether grounds exist for revocation or suspension of the permit 122
under this section.123

       (H) Each permittee shall submit to the director an annual 124
report containing such information as the director may require by 125
rule.126

       (I) The director shall issue a permit under division (A) of 127
this section to any person who lawfully diverted more than one 128
hundred thousand gallons per day of any waters of the state out of 129
the Ohio river drainage basin during the calendar year ending 130
October 14, 1984. A person who is eligible for a permit under this 131
division shall file an application under division (A) of this 132
section not later than one hundred eighty days after the effective 133
date of this amendmentApril 6, 2007.134

        A person who applies for a permit under this division need 135
not pay the application fee that is otherwise required under 136
division (A) of this section. In addition, divisions (B) to (H) of 137
this section and rules adopted under section 1501.31 of the 138
Revised Code do not apply to an application that is filed or a 139
permit that is issued under this division.140

       Sec. 1501.33.  (A) Except as provided in divisions (B) and,141
(C), and (D) of this section, no person shall allow a facility 142
that the person owns to withdraw waters of the state in an amount 143
that would result in a new or increased consumptive use of more 144
than an average of two million gallons of water per day in any 145
thirty-day period without first obtaining a permit from the 146
director of natural resources under section 1501.34 of the Revised 147
Code. The person shall submit an application for a permit to the 148
director on a form hethe director prescribes, which application 149
shall declare and document all of the following:150

       (1) The facility's current withdrawal capacity per day if the 151
withdrawal is to occur at a facility already in operation;152

       (2) The total new or increased daily withdrawal capacity 153
proposed for the facility;154

       (3) The locations and sources of water proposed to be 155
withdrawn;156

       (4) The locations of proposed discharges or return flows;157

       (5) The locations and nature of proposed consumptive uses;158

       (6) The estimated average annual and monthly volumes and 159
rates of withdrawal;160

       (7) The estimated average annual and monthly volumes and 161
rates of consumptive use;162

       (8) The effects the withdrawal is anticipated to have with 163
respect to existing uses of water resources;164

       (9) A description of other ways the applicant's need for 165
water may be satisfied if the application is denied or modified;166

       (10) A description of the conservation practices the 167
applicant intends to follow;168

       (11) Any other information the director may require by rule.169

       Each application shall be accompanied by a nonrefundable fee 170
of one thousand dollars, which shall be credited to the water 171
management fund created under section 1501.32 of the Revised Code.172

       (B) A major utility facility that is subject to regulation 173
under Chapter 4906. of the Revised Code need not obtain a permit 174
under section 1501.34 of the Revised Code.175

       (C)(1) A public water system, as that term is defined in 176
section 6109.01 of the Revised Code, that withdraws waters of the 177
state in an amount that would result in a new or increased 178
consumptive use of more than two million gallons per day need not 179
obtain a permit under section 1501.34 of the Revised Code if any 180
of the following apply:181

       (a) The public water system was in operation on the effective 182
date of this section and no substantial changes are proposed for 183
that system except as specified in division (C)(1)(c) of this 184
section;.185

       (b) A public water system that is proposed to be constructed 186
or installed, or an existing system for which changes are 187
proposed, encompasses only water distribution facilities;.188

       (c) A public water system, other than one that encompasses 189
only water distribution facilities, is proposed to be constructed 190
or installed, or substantial changes in the design capacity of an 191
existing system, other than one that encompasses only water 192
distribution facilities, are proposed; the plans submitted for the 193
system to the director of environmental protection under section 194
6109.07 of the Revised Code declare and document the information 195
specified in division (A) of this section and rules adopted under 196
it as determined by the director of natural resources; and the 197
director of environmental protection has applied the criteria 198
specified in division (A) of section 1501.34 of the Revised Code 199
in reviewing and approving the plans as determined by the director 200
of natural resources.201

       (2) Any public water system that withdraws waters of the 202
state in an amount that would result in a new or increased 203
consumptive use of more than two million gallons per day and that 204
does not meet the criteria specified in divisions (C)(1)(a), (b), 205
or (c) of this section shall obtain a permit under section 1501.34 206
of the Revised Code. A person who submits plans for such a system 207
under section 6109.07 of the Revised Code may request the director 208
of natural resources in writing to consider those plans as an 209
application under this section. No later than twenty days after 210
receiving the request, the director shall notify the person of one 211
of the following:212

       (a) The plans declare and document the information specified 213
in division (A) of this section and rules adopted under it and are 214
accepted as an application under this section, and the person 215
shall submit to the director the application fee required under 216
division (A) of this section;.217

       (b) Additional specified information is necessary before the 218
director can accept the plans as an application;.219

       (c) The plans do not meet the requirements of division (A) of 220
this section and rules adopted under it and an application shall 221
be submitted in accordance with this section.222

       (D) A facility that is required to obtain a permit under 223
sections 1522.10 to 1522.20 of the Revised Code need not obtain a 224
permit under section 1501.34 of the Revised Code.225

       Sec. 1521.04.  The chief of the division of soil and water 226
resources, with the approval of the director of natural resources, 227
may make loans and grants from the water management fund created 228
in section 1501.32 of the Revised Code to governmental agencies 229
for water management, water supply improvements, and planning and 230
may administer grants from the federal government and from other 231
public or private sources for carrying out those functions and for 232
the performance of any acts that may be required by the United 233
States or by any agency or department thereof as a condition for 234
the participation by any governmental agency in any federal 235
financial or technical assistance program. Direct and indirect 236
costs of administration may be paid from the fund.237

       The chief may use the water management fund for the purposes 238
of administering the water diversion and consumptive use permit 239
programs established in sections 1501.30 to 1501.35 of the Revised 240
Code and the withdrawal and consumptive use permit program 241
established under sections 1522.10 to 1522.20 of the Revised Code; 242
to perform watershed and water resources studies for the purposes 243
of water management planning; and to acquire, construct, 244
reconstruct, improve, equip, maintain, operate, and dispose of 245
water management improvements. The chief may fix, alter, charge, 246
and collect rates, fees, rentals, and other charges to be paid 247
into the fund by governmental agencies and persons who are 248
supplied with water by facilities constructed or operated by the 249
department of natural resources in order to amortize and defray 250
the cost of the construction, maintenance, and operation of those 251
facilities.252

       Sec. 1522.03. (A) Subject to the limitations established in 253
division (B) of section 1522.05 of the Revised Code, the director 254
of natural resourcesThe chief of the division of soil and water 255
resources shall do both of the following:256

       (1)(A) Adopt rules in accordance with Chapter 119. of the 257
Revised Code for the implementation, administration, and 258
enforcement of this chaptersections 4.8 and 4.9 of the great 259
lakes-st. Lawrence river basin water resources compact;260

       (2)(B) Enforce the great lakes-st. Lawrence river basin water 261
resources compact and take appropriate actions to effectuate its 262
purposes and intent.263

       (B) Subject to the limitations established in division (B) of 264
section 1522.05 of the Revised Code, any appropriate state agency 265
or governmental officer shall enforce the compact and take 266
appropriate actions to effectuate its purpose and intent.267

       Sec. 1522.05. (A) Pursuant to Section 9.2 of the great 268
lakes-st. Lawrence river basin water resources compact, the 269
governor may take such actions as are necessary for the initial 270
organization and operation of the great lakes-st. Lawrence river 271
basin water resources council created in Section 2.1 of the 272
compact. Agencies of the state are hereby authorized to cooperate 273
with the council.274

       (B)(1) The governor, the department of natural resources, or 275
any other agency of the state shall not adopt rules or implement 276
any program regulating the use, withdrawal, consumptive use, or 277
diversion of water pursuant to Sections 4.10 and 4.12.2 of the 278
compact unless the general assembly enacts legislation after the 279
effective date of this section authorizing the implementation of 280
the program or adoption of rules.281

       In addition, theThe governor, the department of natural 282
resources, or any other agency of the state shall not adopt rules 283
or implement any mandatory program governing water conservation 284
and efficiency pursuant to Section 4.2 of the compactrelated to 285
the great lakes-st. Lawrence river basin water resources compact286
unless the general assembly enacts legislation after the effective 287
date of the compact authorizing the implementation of the program 288
or adoption of the rules. However, theThe governor, the 289
department of natural resources, or any other agency of the state 290
mayshall not adopt rules concerning and may implement voluntary291
establishing a mandatory water conservation and efficiency 292
programsprogram without authorization from the general assembly. 293
Such voluntary programs shall not include any mandatory 294
requirements.295

       (2) Division (B)(1) of this section does not prohibit the 296
effectuation of Sections 4.8 and 4.9 of the compact after the 297
effective date of the compact or prohibit the continued 298
implementation and enforcement by the governor or applicable 299
agencies of this state of laws, rules, or programs regulating the 300
use, withdrawal, consumptive use, or diversion of water that are 301
in effect on or before the effective date of this section.302

       Sec. 1522.10.  As used in sections 1522.10 to 1522.20 of the 303
Revised Code:304

       (A) "Baseline facility" means a facility identified in the 305
baseline report, a facility added to the baseline report under 306
section 1522.16 of the Revised Code, or any other facility that 307
has commenced withdrawal and consumptive use activities since the 308
submission of the baseline report and prior to the effective date 309
of this section.310

       (B) "Baseline facility abandonment" means the voluntary and 311
affirmative termination of a baseline facility's withdrawal and 312
consumptive use capacity as listed in the baseline report. 313
"Baseline facility abandonment" does not include the nonuse or the 314
transfer of a baseline facility's withdrawal and consumptive use 315
capacity.316

       (C) "Baseline report" means a list of the withdrawal and 317
consumptive use capacities of facilities that was developed for 318
purposes of section 4.12 of the great lakes-st. Lawrence river 319
basin water resources compact by the department of natural 320
resources and submitted to the great lakes-st. Lawrence river 321
basin water resources council on December 8, 2009.322

       (D) "Capacity" means the ability of a facility's pumps, 323
pipes, and other appurtenances to withdraw and consumptively use 324
water.325

       (E) "Consumptive use" has the same meaning as in section 326
1522.01 of the Revised Code. For purposes of determining a new or 327
increased capacity for consumptive use, "consumptive use" is the 328
use based on a coefficient of consumptive use generally accepted 329
in the scientific community that most accurately reflects the 330
process at a facility or the use based on facility specific data, 331
whichever is more accurate.332

       (F) "Facility" means any site, installation, or building at 333
which water withdrawal and consumptive use activities take place 334
that is located at a property or on contiguous properties and that 335
is under the direction of either a private or public entity. 336
"Facility" includes any site, installation, building, or service 337
area of a public water system at or within which water withdrawal 338
and consumptive use activities take place.339

       (G) "Facility abandonment" means the voluntary and 340
affirmative termination of a facility's withdrawal and consumptive 341
use capacity as listed in a withdrawal and consumptive use permit 342
issued under section 1522.11 of the Revised Code. "Facility 343
abandonment" does not include the nonuse or the transfer of a 344
facility's withdrawal and consumptive use capacity.345

       (H) "High quality water" means a river or stream that has 346
been designated by the environmental protection agency under 347
Chapter 3745-1 of the Administrative Code not later than the 348
effective date of this section as an exceptional warm water 349
habitat, cold water habitat, outstanding state water, or superior 350
high-quality water. However, "high quality water" does not include 351
outstanding state waters that are designated as such due to 352
exceptional recreational values. 353

       (I) "Increased capacity" does not include any capacity that 354
results from alterations or changes made at a facility that 355
replace existing capacity without increasing the capacity of the 356
facility.357

       (J) "Public water system" has the same meaning as in section 358
6109.01 of the Revised Code.359

       (K) "Recognized navigational channel" means that portion of a 360
river or stream extending from bank to bank that is, as of the 361
effective date of this section, a state or federally maintained 362
navigational channel.363

       (L) "River or stream" means a named body of water running or 364
flowing, either continually or intermittently, on the earth's 365
surface or a channel in which such flow occurs.366

       (M) "River or stream under the influence of Lake Erie" means 367
that portion of any river or stream that has a bottom elevation at 368
or below the long-term monthly mean level of Lake Erie, as 369
designated by the United States army corps of engineers, of five 370
hundred seventy-one and nine-tenths feet above the international 371
great lakes datum (IGLD) 1985 and to which both of the following 372
apply:373

       (1) The portion of the river or stream is a direct tributary 374
of Lake Erie.375

       (2) The portion of the river or stream is a recognized 376
navigational channel.377

       The definition of "river or stream under the influence of 378
Lake Erie" applies only to that term as it is used in sections 379
1522.10 to 1522.20 of the Revised Code.380

       Sec. 1522.101. (A) For purposes of this chapter, with respect 381
to the definition of "source watershed" in section 1522.01 of the 382
Revised Code, the general assembly declares that "source 383
watershed" means the Lake Erie watershed.384

       (B) Nothing in sections 1522.10 to 1522.20 of the Revised 385
Code shall limit a person's right to the reasonable use of ground 386
water, water in a lake, or any other watercourse in contravention 387
of Section 19b of Article I, Ohio Constitution.388

       Sec. 1522.11.  (A) For purposes of the great lakes-st. 389
Lawrence river basin water resources compact, not later than one 390
hundred eighty days after the effective date of this section, the 391
chief of the division of soil and water resources shall establish 392
a program for the issuance of permits for the withdrawal and 393
consumptive use of water from the Lake Erie watershed. Upon 394
establishment of the program, the owner or operator of a facility 395
that is not otherwise exempt under section 1522.13 of the Revised 396
Code shall obtain a withdrawal and consumptive use permit from the 397
chief if the facility meets any of the following threshold 398
criteria:399

       (1) The facility, when operating under intended operating 400
conditions, has a new or increased capacity for withdrawals or 401
consumptive uses from Lake Erie or a river or stream under the 402
influence of Lake Erie of at least five million gallons per day 403
averaged over a ninety-day period.404

       (2) Except as provided in division (A)(3) of this section, 405
the facility, when operating under intended operating conditions, 406
has a new or increased capacity for withdrawals or consumptive 407
uses from any river or stream other than a river or stream under 408
the influence of Lake Erie or from ground water in the Lake Erie 409
watershed of at least two million gallons per day averaged over a 410
ninety-day period.411

       (3) The facility, when operating under intended operating 412
conditions, has a new or increased capacity for withdrawals or 413
consumptive uses of at least three hundred thousand gallons per 414
day averaged over a ninety-day period from any river or stream to 415
which both of the following apply:416

       (a) The river or stream is a high quality water.417

       (b) The river or stream has a drainage area of less than one 418
hundred square miles measured at the point where the withdrawal or 419
consumptive use occurs.420

       (B) Permits issued under this section shall be issued only 421
for the amount of withdrawal or consumptive use capacity of a 422
facility that exceeds threshold amounts established in division 423
(A) of this section. A permit shall neither address nor be 424
required for the portion of the withdrawal and consumptive use 425
capacity of the facility below that threshold amount. 426

       (C) An applicant for a permit shall submit an application to 427
the chief on a form that the chief prescribes. The applicant shall 428
include with the application all of the following:429

       (1) The name and address of the applicant and of a contact 430
person for the applicant;431

       (2) A description of all of the following:432

       (a) The facility's current withdrawal capacity per day if the 433
withdrawal is to occur at a facility already in operation;434

       (b) The total new or increased daily withdrawal capacity 435
proposed for the facility;436

        (c) The locations and sources of water proposed to be 437
withdrawn;438

       (d) The locations of proposed discharges or return flows;439

       (e) The locations and nature of proposed consumptive uses and 440
the applicable consumptive use coefficient for the facility;441

       (f) The estimated average annual and monthly volumes and 442
rates of withdrawal;443

       (g) The estimated average annual and monthly volumes and 444
rates of consumptive use;445

        (h) The environmentally sound and economically feasible water 446
conservation measures to be undertaken by the applicant;447

       (i) Other ways the applicant's need for water may be 448
satisfied if the application is denied or modified.449

       (3) A nonrefundable application fee of one thousand dollars 450
the proceeds of which shall be credited to the water management 451
fund created in section 1501.32 of the Revised Code.452

       The chief shall not require an applicant to submit any 453
information with an application other than the information 454
required by divisions (C)(1) and (2) of this section.455

       (D) A permit is valid until the facility to which the permit 456
applies is the subject of facility abandonment. Once every five 457
years, the owner or operator of a facility shall certify to the 458
chief that the facility is in compliance with the permit that has 459
been issued for the facility.460

       (E) No person that is required to do so shall fail to apply 461
for and receive a withdrawal and consumptive use permit.462

       (F) A permit issued under this section shall include terms 463
and conditions restricting the withdrawal and consumptive use by a 464
facility to amounts not exceeding the capacity of the facility.465

       Sec. 1522.12.  (A) In making the decision to issue or deny a 466
withdrawal and consumptive use permit, the chief of the division 467
of soil and water resources shall apply the criteria established 468
in section 4.11 of the great lakes-st. Lawrence river basin water 469
resources compact.470

       For purposes of applying the criteria established in section 471
4.11 of the great lakes-st. Lawrence river basin water resources 472
compact, all of the following apply:473

       (1) If a withdrawal by a facility from Lake Erie or a river 474
or stream under the influence of Lake Erie results in a 475
consumptive use that is less than one and five-tenths per cent of 476
the long-term mean annual runoff from the Ohio portion of the Lake 477
Erie watershed, it is irrebuttably presumed that the withdrawal 478
and consumptive use will not cause a significant individual or 479
cumulative adverse impact to the quantity or quality of waters and 480
water dependent natural resources and the Lake Erie watershed. 481
Division (A)(1) of this section does not apply to high quality 482
water.483

       (2) If a withdrawal by a facility from ground water or a 484
river or stream that is not a river or stream under the influence 485
of Lake Erie results in a consumptive use that is less than 486
seventy-five one hundredths of one per cent of the long-term mean 487
annual runoff from the Ohio portion of the Lake Erie watershed, it 488
is irrebuttably presumed that the withdrawal and consumptive use 489
will not cause a significant individual or cumulative adverse 490
impact to the quantity or quality of waters and water dependent 491
natural resources and the Lake Erie watershed. Division (A)(2) of 492
this section does not apply to high quality water.493

       (3) A withdrawal and consumptive use from any river or stream 494
that is a high quality water with a drainage area of less than one 495
hundred square miles has or will have no significant individual or 496
cumulative adverse impacts on the Lake Erie watershed unless the 497
withdrawal and consumptive use adversely impacts the high quality 498
water as determined by the chief in accordance with rules adopted 499
under section 1522.14 of the Revised Code.500

       Within one hundred eighty days of the effective date of this 501
section and for purposes of making the calculations required under 502
divisions (A)(1) and (2) of this section, the chief of the 503
division of soil and water resources shall establish the long-term 504
mean annual runoff from the Ohio portion of the Lake Erie 505
watershed. Beginning ten years after the effective date of this 506
section and every ten years thereafter, the chief shall update the 507
long-term mean annual runoff utilizing the best available 508
published hydrologic data collected over the previous twenty 509
years.510

       (B) The chief shall not submit an application for a 511
withdrawal and consumptive use permit for regional review under 512
section 4.5.2(c)(ii) of the great lakes-st. Lawrence river basin 513
water resources compact to the regional body as defined in section 514
1.2 of the compact unless regional review is agreed to by the 515
applicant for the permit.516

        (C) The chief shall issue a withdrawal and consumptive use 517
permit for a facility only if the chief determines that a facility 518
meets all of the criteria established in section 4.11 of the great 519
lakes-st. Lawrence river basin water resources compact.520

       (D) A withdrawal or consumptive use is reasonable under 521
section 4.11.5 of the great lakes-st. Lawrence river basin water 522
resources compact unless a determination is made that the 523
withdrawal or consumptive use is not reasonable by a court of 524
competent jurisdiction in this state pursuant to section 1521.17 525
of the Revised Code. This division does not provide standing to 526
the department of natural resources to bring suit under the 527
reasonable use doctrine.528

       Sec. 1522.13.  The following are exempt from the requirement 529
to obtain a withdrawal and consumptive use permit:530

       (A) A facility or proposed facility that has a withdrawal and 531
consumptive use capacity or proposed capacity below the threshold 532
amounts established in divisions (A)(1) to (3) of section 1522.11 533
of the Revised Code;534

       (B) A baseline facility that has not increased its withdrawal 535
and consumptive use capacity beyond the capacity listed in the 536
baseline report and beyond the thresholds established in section 537
1522.11 of the Revised Code;538

       (C) A facility that is required to increase its withdrawal 539
and consumptive use capacity as a result of legal requirements 540
established by federal or state governmental authorities;541

       (D) A facility making a withdrawal and consumptive use from 542
nonchannelized surface water that is not a river or stream or from 543
an impoundment of water that is isolated and does not depend 544
entirely on ground water for replenishment such as a farm pond, 545
golf course pond, or other similar retention pond. The exemption 546
established by this division does not apply to a facility making a 547
withdrawal and consumptive use for industrial purposes or for 548
public water supply purposes.549

       (E) A facility that is establishing a new or is increasing 550
its withdrawal and consumptive use capacity as a result of an 551
emergency condition that, without the new or increased withdrawal 552
and consumptive use capacity, will result in imminent harm to 553
human health or property;554

       (F) A facility that is establishing a new or is increasing 555
its withdrawal and consumptive use capacity for testing purposes 556
only if the testing period will last not longer than twenty-four 557
months;558

       (G) A facility that is establishing a new or is increasing 559
its withdrawal and consumptive use capacity in order to respond to 560
a humanitarian crisis if the new or increased capacity is 561
necessary to assist in the management of that crisis;562

       (H) A facility that is exempt from the requirement to obtain 563
a permit under divisions (B) and (C) of section 1501.33 of the 564
Revised Code;565

       (I) A facility that is subject to regulation under Chapter 566
1514. of the Revised Code;567

       (J) A facility that purchases all of its water from a public 568
water system;569

       (K) A facility with ground water or surface water withdrawals 570
or consumptive uses that are subject to regulation under a state 571
or federal law other than sections 1522.10 to 1522.20 of the 572
Revised Code. However, the exemption from regulation under a state 573
law established by this division does not apply with respect to 574
state law governing either of the following:575

       (1) A permit issued under Chapter 6111. of the Revised Code;576

       (2) A permit issued under section 1501.34 of the Revised 577
Code. 578

       (L) A facility that is withdrawing or consumptively using 579
water from an off-stream impoundment that has been substantially 580
filled by a withdrawal from a baseline facility or from a facility 581
for which a withdrawal and consumptive use permit has been issued;582

       (M) A facility that is a public water system that is 583
increasing its withdrawal or consumptive use capacity and the 584
increase is directly related to supplying a major public utility 585
that is subject to regulation under Chapter 4906. of the Revised 586
Code.587

       Sec. 1522.14.  The chief of the division of soil and water 588
resources shall adopt rules in accordance with Chapter 119. of the 589
Revised Code governing the regulation of withdrawals and 590
consumptive uses from high quality water as referred to in 591
division (A)(3) of section 1522.12 of the Revised Code. The rules 592
shall establish standards for what constitutes significant 593
individual or cumulative adverse impact to a high quality water 594
with a drainage area of less than one hundred square miles for 595
purposes of division (A)(3) of section 1522.12 of the Revised 596
Code.597

       Sec. 1522.15.  (A)(1) A permittee may transfer a withdrawal 598
and consumptive use permit upon the sale or transfer of a 599
facility. In addition, the owner of a baseline facility may 600
transfer the withdrawal and consumptive use capacity of the 601
baseline facility upon the sale or transfer of the baseline 602
facility. Transferred capacity of a baseline facility shall not 603
require a withdrawal and consumptive use permit. Notice of a 604
transfer shall be provided to the chief of the division of soil 605
and water resources in a manner prescribed by the chief.606

        (2) If a permittee sells or transfers a portion of a facility 607
for which a withdrawal and consumptive use permit has been issued, 608
the permittee may transfer the applicable portion of the 609
withdrawal and consumptive use capacity authorized by the 610
withdrawal and consumptive use permit. The permittee shall provide 611
notice of such a transfer to the chief in a manner prescribed by 612
the chief. Upon receipt of the notice and if a permit is required 613
based on the threshold amounts established in divisions (A)(1) to 614
(3) of section 1522.11 of the Revised Code, the chief shall issue 615
a new permit to the permittee who transferred the portion of the 616
facility and a new permit to the transferee. Any new permits shall 617
reflect the transfer of the portion of the withdrawal and 618
consumptive use capacity.619

       (3) If the owner of a baseline facility sells a portion of 620
the baseline facility, the owner may transfer the applicable 621
portion of the withdrawal and consumptive use capacity listed in 622
the baseline report for that facility. The owner shall provide 623
notice of such a transfer to the chief in a manner prescribed by 624
the chief. The chief shall not require the owner of the baseline 625
facility or the transferee to obtain a withdrawal and consumptive 626
use permit. Rather, the chief shall update the baseline report to 627
reflect the transfer.628

       (4) No person shall sell or transfer a withdrawal and 629
consumptive use permit for purposes of evading the requirements 630
established in sections 1522.10 to 1522.20 of the Revised Code.631

       (B) The chief shall remove a facility from the baseline 632
report when the facility is subject to baseline facility 633
abandonment. However, a baseline facility shall not be removed 634
from the baseline report for the nonuse or the transfer of the 635
facility's baseline capacity.636

       Sec. 1522.16. (A) The owner or operator of a facility may 637
petition the chief of the division of soil and water resources for 638
either of the following:639

       (1) Inclusion in the baseline report if the owner or operator 640
believes that the facility was erroneously excluded from the 641
report;642

       (2) The amendment of the amount of a withdrawal and 643
consumptive use or other information included in the baseline 644
report regarding the facility if the owner or operator believes 645
that the information is incorrect.646

       (B) The chief shall issue an order either approving or 647
disapproving a petition submitted under this section. The chief 648
shall issue the order based on a thorough examination of the 649
circumstances concerning the petition.650

       (C) An order of the chief issued under this section may be 651
appealed in accordance with section 1522.19 of the Revised Code.652

       (D) The chief shall adopt rules in accordance with Chapter 653
119. of the Revised Code that establish procedures for the 654
submission of petitions under this section.655

       Sec. 1522.17. (A) The owner or operator of a facility for 656
which a withdrawal and consumptive use permit has been issued 657
shall utilize environmentally sound and economically feasible 658
water conservation measures in compliance with section 4.11.3 of 659
the great lakes-st. Lawrence river basin water resources compact. 660
The owner or operator may implement those measures in the form of 661
best management practices that are applicable to the facility. The 662
owner or operator has discretion to determine which practices are 663
best management practices. An owner or operator that implements 664
such measures is deemed to be in compliance with section 4.11.3 of 665
the great lakes-st. Lawrence river basin water resources compact. 666
Any reporting that is required by the chief of the division of 667
soil and water resources for purposes of this division is 668
proprietary and shall be confidential and not subject to section 669
149.43 of the Revised Code.670

       (B) Nothing in this chapter authorizes the chief or the 671
director of natural resources to adopt rules requiring mandatory 672
conservation of water resources. The general assembly shall not 673
enact any law that would require a mandatory water conservation 674
program without at least a two-thirds majority vote of the senate 675
and house of representatives.676

       Divisions (A) and (B) of this section comply with the 677
requirements of section 4.11.3 of the great lakes-st. Lawrence 678
river basin water resources compact.679

        (C) Every five years, the chief shall make an assessment of 680
the cumulative impacts of withdrawals and consumptive uses from 681
the waters of the Lake Erie watershed for purposes of section 4.15 682
of the great lakes-st. Lawrence river basin water resources 683
compact. The assessment shall be based on reports, data, and other 684
information relating directly to withdrawals and consumptive uses 685
by facilities that have received a withdrawal and consumptive use 686
permit under this chapter. The chief shall prepare a report of the 687
assessment and shall submit a copy of it to the governor, the 688
speaker of the house of representatives, and the president of the 689
senate. 690

       This division complies with the requirements of section 691
4.11.2 of the great lakes-st. Lawrence river basin water resources 692
compact as they relate to the assessment of significant cumulative 693
adverse impacts.694

       Sec. 1522.18.  (A) There is hereby created the water 695
resources review commission consisting of five members appointed 696
by the governor with the advice and consent of the senate. The 697
commission shall hear appeals that are made under section 1522.19 698
of the Revised Code. Of the initial members appointed to the 699
commission, one shall serve a term of three years, two shall serve 700
a term of four years, and two shall serve a term of five years as 701
designated by the governor. Thereafter, terms of office shall be 702
five years. Each member shall hold office from the date of 703
appointment until the end of the term for which the appointment 704
was made. Each vacancy occurring on the commission shall be filled 705
by appointment within sixty days after the vacancy occurs. Any 706
member appointed to fill a vacancy occurring prior to the 707
expiration of the term for which the member's predecessor was 708
appointed shall hold office for the remainder of that term. A 709
member shall continue in office subsequent to the expiration date 710
of the member's term until the member's successor takes office. A 711
member may be reappointed.712

       (B) Two of the appointees to the commission shall be experts 713
in economic development, two shall be experts in water resource 714
management, and one shall be a member of the public who is an 715
attorney at law who is admitted to practice in this state and is 716
familiar with the laws related to water resources. Not more than 717
three members shall be members of the same political party.718

       (C) Three members of the commission constitute a quorum, and 719
no action of the commission shall be valid unless it has the 720
concurrence of at least a majority of the members. The commission 721
shall keep a record of its proceedings. Annually one member shall 722
be elected as chairperson and another member shall be elected as 723
vice-chairperson for terms of one year.724

       (D) The commission shall adopt rules in accordance with 725
Chapter 119. of the Revised Code governing the procedure for 726
appeals conducted under section 1522.19 of the Revised Code and 727
may adopt rules governing its own internal management that do not 728
affect private rights.729

       (E) The governor may remove a member of the commission from 730
office for inefficiency, neglect of duty, malfeasance, 731
misfeasance, or nonfeasance after delivering to the member the 732
charges against the member in writing with at least ten days' 733
written notice of the time and place at which the governor will 734
publicly hear the member, either in person or by counsel, in 735
defense of the charges against the member. If the member is 736
removed from office, the governor shall file in the office of the 737
secretary of state a complete statement of the charges made 738
against the member and a complete report of the proceedings. The 739
action of the governor removing a member from office is final.740

       (F) A member shall be paid as compensation for work as a 741
member one hundred fifty dollars per day when actually engaged in 742
the performance of work as a member and when engaged in travel 743
necessary in connection with that work. In addition to monetary 744
compensation, a member shall be reimbursed for all traveling, 745
hotel, and other expenses, in accordance with the current travel 746
rules of the office of budget and management, necessarily incurred 747
in the performance of the member's work as a member.748

       Sec. 1522.19.  (A) A person having a direct economic interest 749
that is or may be adversely affected by a decision or order of the 750
chief of the division of soil and water resources under sections 751
1522.10 to 1522.20 of the Revised Code may appeal the decision or 752
order. The appeal shall be made by filing a notice of appeal with 753
the water resources review commission for review of the decision 754
or order not later than thirty days after the decision or order is 755
made. The person also shall file a copy of the notice of appeal 756
with the chief not later than three days after filing the notice 757
of appeal with the commission. The notice of appeal shall contain 758
a description of the decision or order complained of and the 759
grounds on which the appeal is based. The commission has exclusive 760
original jurisdiction to hear and decide such appeals. The filing 761
of a notice of appeal under this division does not operate as a 762
stay of any decision or order of the chief.763

       (B) A permittee, if applicable, and the appellee, the chief, 764
and other interested persons shall be given written notice of the 765
date, time, and location of a hearing on the appeal at least five 766
days prior to the hearing. The hearing shall be of record.767

       (C) The commission shall affirm the decision or order of the 768
chief unless the commission determines by a preponderance of the 769
evidence that it is arbitrary, capricious, or otherwise 770
inconsistent with law; in that case the commission may modify the 771
decision or order of the chief or vacate it and remand it to the 772
chief for further proceedings that the commission may direct. The 773
commission shall render a decision not later than thirty days 774
after the hearing.775

       (D) The chairperson of the commission, under conditions that 776
the chairperson prescribes, may grant temporary relief that the 777
chairperson considers appropriate pending final determination of 778
an appeal if all of the following conditions are met:779

       (1) All parties to the appeal have been notified and given an 780
opportunity for a hearing on the request for temporary relief.781

       (2) The person requesting relief shows that there is a 782
substantial likelihood that the person will prevail on the merits.783

       (3) The relief will not adversely affect public health or 784
safety or cause significant imminent environmental harm to water 785
resources.786

       (E) A party that is aggrieved or adversely affected by a 787
decision of the water resources review commission may appeal to 788
the court of appeals for the county in which the activity 789
addressed by the decision of the commission occurred, is 790
occurring, or will occur. The appeal shall be filed not later than 791
thirty days after issuance of the decision of the commission. The 792
court shall confine its review to the record certified by the 793
commission. The court, upon motion, may grant temporary relief 794
that it considers appropriate pending final disposition of the 795
appeal if all of the following apply:796

       (1) All parties to the appeal have been notified and given an 797
opportunity to be heard on the request for temporary relief.798

       (2) The person requesting relief shows that there is a 799
substantial likelihood that the person will prevail on the merits.800

       (3) The relief will not adversely affect public health or 801
safety or cause significant imminent environmental harm to water 802
resources.803

       The court shall affirm the decision of the commission unless 804
the court determines that it is arbitrary, capricious, or 805
otherwise inconsistent with law; in that case the court shall 806
vacate the decision and remand it to the commission for further 807
proceedings that the court may direct.808

       (F) The water resources review commission or a court of 809
appeals shall not award attorney's fees to any party to an action 810
under this section.811

       (G) An appeal may not be taken under this section if the 812
subject of the appeal involves section 4.9 of the great lakes-st. 813
Lawrence river basin water resources compact.814

       Sec. 1522.20.  (A)(1) The chief of the division of soil and 815
water resources may issue an order to a person that the chief 816
determines has violated, is violating, or is threatening to 817
violate any provisions of this chapter, rules adopted under it, or 818
a withdrawal and consumptive use permit. The order shall identify 819
the facility where the violation has occurred, is occurring, or is 820
threatened to occur, the specific violation, and actions that the 821
owner or operator of the facility must take to comply with the 822
order. The order shall establish a reasonable date by which the 823
owner or operator must comply with the order.824

       (2) An order issued under division (A)(1) of this section 825
shall be in writing and shall contain a finding of the facts on 826
which the order is based. Notice of the order shall be given by 827
certified mail to each person whose rights, duties, or privileges 828
are affected. Notice also shall be posted on the web site of the 829
department of natural resources in a manner prescribed by the 830
chief.831

       (B) The attorney general, upon the request of the chief, may 832
bring an action for injunction against a person who has violated, 833
is violating, or is threatening to violate any provisions of this 834
chapter, rules adopted under it, a withdrawal and consumptive use 835
permit, or an order of the chief issued under division (A) of this 836
section. The action shall be brought in the court of common pleas 837
of the county in which the violation has occurred, is occurring, 838
or is threatened to occur. The court of common pleas in which an 839
action for injunction is filed has jurisdiction to and shall grant 840
preliminary and permanent injunctive relief upon a showing that 841
the person against whom the action is brought has violated, is 842
violating, or is threatening to violate any provisions of this 843
chapter, rules adopted under it, a permit, or an order of the 844
chief.845

       Section 2.  That existing sections 1501.32, 1501.33, 1521.04, 846
1522.03, and 1522.05 and section 1522.07 of the Revised Code are 847
hereby repealed.848

       Section 3. For purposes of adopting rules under section 849
1522.14 of the Revised Code, as enacted by this act, regarding the 850
determination of what constitutes significant individual or 851
cumulative adverse impact to a high quality water with a drainage 852
area of less than one hundred square miles, the Chief of the 853
Division of Soil and Water Resources in the Department of Natural 854
Resources shall do both of the following:855

       (A) Convene an advisory group consisting of interested 856
parties to advise the Chief;857

       (B) Ensure that at least one member of the advisory group 858
represents The Nature Conservancy.859

       Section 4. The General Assembly hereby declares that the 860
purpose of this act is to protect private property rights 861
associated with surface and ground water in Ohio; to promote good 862
stewardship of Ohio's water resources; and to promote economic 863
development and job creation in Ohio by recognizing that abundant 864
fresh water is a highly desirable commodity.865