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As Passed by the House
123rd General Assembly
Regular Session
1999-2000 | Am. S. B. No. 20 |
SENATORS CUPP-WHITE-WACHTMANN-CARNES-MUMPER-NEIN-LATTA-
ARMBRUSTER-DRAKE-
REPRESENTATIVES BRADING-CORE-KREBS-HARRIS-
METZGER-HAINES-BUEHRER-DAMSCHRODER-JORDAN-TERWILLEGER-
DISTEL-HARTNETT-TAYLOR-OGG-HOUSEHOLDER-STAPLETON-HOLLISTER-
BUCHY-HOOPS-WILLIAMS-NETZLEY-VESPER-WILLAMOWSKI-HOOD
A BILL
To amend sections 6111.01, 6111.12, and 6131.14 of the Revised Code to
declare, for
purposes of the state antidegradation statute, that a historically channelized
watercourse provides technical, social, and economic benefits, to preclude
the Director of Environmental Protection from requiring further
antidegradation review upon making specified findings, including a finding
that work is necessary to restore or maintain such a watercourse, and to
require, where appropriate, the Director of Natural Resources and, if
applicable, the Director of Transportation and the board of directors of a
conservancy district to make recommendations to a county engineer regarding
the use of best managment practices in the construction of an improvement
under the ditch statutes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 6111.01, 6111.12, and 6131.14 of the Revised Code be
amended to
read as follows:
Sec. 6111.01. As used in Chapter 6111. of the Revised
Code THIS CHAPTER:
(A) "Pollution" means the placing of any sewage,
industrial waste, or other wastes in any waters of the state.
(B) "Sewage" means any liquid waste containing animal or
vegetable matter in suspension or solution, and may include
household wastes as commonly discharged from residences and from
commercial, institutional, or similar facilities.
(C) "Industrial waste" means any liquid, gaseous, or solid
waste substance resulting from any process of industry,
manufacture, trade, or business, or from the development,
processing, or recovery of any natural resource, together with
such sewage as is present.
(D) "Other wastes" means garbage, refuse, decayed wood,
sawdust, shavings, bark, and other wood debris, lime, sand,
ashes, offal, night soil, oil, tar, coal dust, dredged or fill
material, or silt, other substances that are not sewage or
industrial waste, and any other "pollutants" or "toxic
pollutants" as defined in the "Federal Water Pollution Control
Act" that are not sewage or industrial waste.
(E) "Sewerage system" means pipelines or conduits, pumping
stations, and force mains, and all other constructions, devices,
appurtenances, and facilities used for collecting or conducting
water-borne sewage, industrial waste, or other wastes to a point
of disposal or treatment, but does not include plumbing fixtures,
building drains and subdrains, building sewers, and building
storm sewers.
(F) "Treatment works" means any plant, disposal field,
lagoon, dam, pumping station, building sewer connected directly
to treatment works, incinerator, or other works used for the
purpose of treating, stabilizing, or holding sewage, industrial
waste, or other wastes, except as otherwise defined.
(G) "Disposal system" means a system for disposing of
sewage, industrial waste, or other wastes, and includes sewerage
systems and treatment works.
(H) "Waters of the state" means all streams, lakes, ponds,
marshes, watercourses, waterways, wells, springs, irrigation
systems, drainage systems, and all other bodies or accumulations
of water, surface and underground, natural or artificial,
regardless of the depth of the strata in which underground water
is located, which THAT are situated wholly or partly within, or
border
upon, this state, or are within its jurisdiction, except those
private waters which THAT do not combine or effect a junction
with
natural surface or underground waters.
(I) "Person" means the state, any municipal corporation, ANY
political subdivision of the state, ANY person as defined in section
1.59 of the Revised Code, ANY interstate body created by compact, or
the federal government or any department, agency, or
instrumentality thereof.
(J) "Industrial water pollution control facility" means
any disposal system or any treatment works, pretreatment works,
appliance, equipment, machinery, pipeline or conduit, pumping
station, force main, or installation constructed, used, or placed
in operation primarily for the purpose of collecting or
conducting industrial waste to a point of disposal or treatment;
reducing, controlling, or eliminating water pollution caused by
industrial waste; or for reducing, controlling, or eliminating
the discharge into a disposal system of industrial waste or what
would be industrial waste if discharged into the waters of the
state.
(K) "Schedule of compliance" means a schedule of remedial
measures including an enforceable sequence of actions or
operations leading to compliance with standards and rules adopted
under sections 6111.041 and 6111.042 of the Revised Code or
compliance with terms and conditions of permits set under
division (J) of section 6111.03 of the Revised Code.
(L) "Federal Water Pollution Control Act" means the
"Federal Water Pollution Control Act Amendments of 1972," 86
Stat. 886, 33 U.S.C.A. 1251, as amended by the "Clean Water Act
of 1977," 91 Stat. 1566, 33 U.S.C.A. 1251.
(M) "HISTORICALLY CHANNELIZED
WATERCOURSE" MEANS THE PORTION OF A WATERCOURSE ON WHICH AN IMPROVEMENT, AS
DEFINED IN DIVISIONS (C)(2) TO (4) OF SECTION 6131.01 of the Revised Code, WAS
CONSTRUCTED PURSUANT TO CHAPTER 1515., 6131., OR 6133. of the Revised Code OR A
SIMILAR STATE LAW THAT PRECEDED ANY OF THOSE CHAPTERS AND AUTHORIZED SUCH AN
IMPROVEMENT.
Sec. 6111.12. (A) The director of environmental
protection shall establish an antidegradation policy applicable
to surface waters of the state pursuant to applicable federal
laws and regulations. The purpose of the policy shall be to
maintain levels of water quality that are currently better than
prescribed by applicable standards except in situations when a
need to allow a lower level of water quality is demonstrated
based on technical, social, and economic criteria. Not later
than March 31, 1994, the director shall revise the existing
antidegradation policy established in rules adopted under section
6111.041 of the Revised Code and revise any necessary
implementation procedures to conform them to the following
principles and any mandatory regulations adopted under the
"Federal Water Pollution Control Act":
(1) The use of existing effluent quality as a method of
calculating antidegradation-based limits shall be imposed only to
the extent that the use is explicitly required by federal law or
regulation as the only means available to implement
antidegradation.
(2) No degradation shall be allowed in waters for any
pollutant that currently does not meet applicable standards. For
all remaining waters, there shall be provisions requiring federal
antidegradation requirements to be met and provisions ensuring
that waters of exceptional recreational or ecological value are
maintained as high quality resources for future generations.
There shall be at least two categories of surface waters
identified in the state for that purpose and for the purpose of
establishing priorities for the administrative and technical
resources expended on antidegradation reviews.
(3) Whenever current ambient water quality is determined
to be of a higher quality than prescribed in the standards, on a
pollutant-by-pollutant basis, and the water body lacks
exceptional recreational or ecological value, the director may
allocate to existing sources eighty per cent of the pollutant
assimilative capacity as determined by appropriate total maximum
daily load procedures without further antidegradation review.
The permittee for any existing source may receive an effluent
limitation based on not more than one hundred per cent of the
mass or concentration levels necessary to meet applicable water
quality in the receiving water body as determined by appropriate
total maximum daily load procedures, provided that there has been
a satisfactory demonstration of the need to allow lower water
quality based on technical, social, and economic criteria and the
action is preceded by a public notice. Sources other than
existing sources that result in ten per cent or greater change,
that is, degradation, of ambient chemical water quality shall
require a demonstration of technical, social, and economic need
and shall be the subject of a public notice.
(4) Degradation of waters identified as possessing
exceptional recreational or ecologic ECOLOGICAL value shall be
determined
through an analysis of the expected perceptible change in ambient
concentrations of pollutant or alternatively through an analysis
of the expected change in the biological condition of the water
body. Either determination shall constitute a lowering of water
quality and shall require an antidegradation review. The
director shall establish, by rules adopted in accordance with
Chapter 119. of the Revised Code, a definition of perceptible
change that shall be applicable to those waters identified in
rule as possessing exceptional recreational or ecological value.
Antidegradation reviews shall be required for any activity
resulting in a perceptible change in ambient chemical or
biological quality on waters identified as possessing exceptional
recreational or ecological value. Allowances shall be made for
existing sources to retain their current permit limits with no
requirement to demonstrate technical, social, and economic need.
(5) The director shall establish reasonable protocols for
completing technical, social, and economic need demonstrations
based on existing federal guidance and on input from the
department of development, the regulated community, and the
general public.
(B) Effluent limitations established by the director for
any existing source in any permit issued under division (J) of
section 6111.03 of the Revised Code prior to the effective date
of this section JULY 1, 1993, shall continue in effect
unless the permit is
modified by the director. A discharger seeking modification of
antidegradation-based limitations that were based on existing
quality of discharge when the permit was issued shall apply to
the director for modification of the permit, consistent with
rules adopted under division (A) of this section, not later than
one hundred eighty days after the effective date of this section
JULY 1, 1993. If the permittee has filed such a timely
application for
modification, the director shall not pursue administrative or
judicial enforcement actions for violations of
antidegradation-based limitations based on the existing quality
of effluent that occur after the effective date of this section
JULY 1, 1993.
(C) A HISTORICALLY CHANNELIZED WATERCOURSE PROVIDES TECHNICAL,
SOCIAL, AND ECONOMIC BENEFITS. THEREFORE, WITH REGARD TO A
HISTORICALLY CHANNELIZED WATERCOURSE, THE DIRECTOR SHALL NOT
REQUIRE FURTHER ANTIDEGRADATION REVIEW DURING THE REVIEW OF AN
APPLICATION FOR AND THE ISSUANCE OR DENIAL OF A PERMIT UNDER
THIS CHAPTER OR A WATER QUALITY CERTIFICATION UNDER SECTION 401
OF THE FEDERAL WATER POLLUTION CONTROL
ACT IF THE DIRECTOR
FINDS, AFTER PUBLIC NOTICE AND OPPORTUNITY FOR COMMENT, AND A
PUBLIC HEARING IF SIGNIFICANT PUBLIC INTEREST IS SHOWN, THAT ALL
OF THE FOLLOWING APPLY:
(1) WORK IS NECESSARY TO RESTORE OR MAINTAIN A DRAINAGE
OR OTHER IMPROVEMENT PROVIDED BY A HISTORICALLY CHANNELIZED
WATERCOURSE.
(2) THE WORK IS PERFORMED PURSUANT TO SECTION 1515.08 OF THE
REVISED
CODE OR A
PETITION FILED UNDER SECTION 6131.04 OR 6133.02 OF THE
REVISED
CODE.
(3) WITHOUT THE WORK, FLOODING THREATENS PUBLIC HEALTH
AND SAFETY OR MAY RESULT IN SIGNIFICANT DAMAGE TO PUBLIC OR
PRIVATE PROPERTY.
(4) THE WORK WILL NOT RESULT IN THE LOSS OF DESIGNATED OR
EXISTING BENEFICIAL USES AS THOSE USES ARE DESCRIBED IN RULES
ADOPTED UNDER SECTION 6111.041 OF THE
REVISED
CODE.
(5) THE WORK WILL NOT HARM OR INTERFERE WITH THE
PROTECTION OF FEDERAL OR STATE DESIGNATED ENDANGERED OR THREATENED
SPECIES.
(6) THE HISTORICALLY CHANNELIZED WATERCOURSE IS NOT
DESIGNATED AS COLDWATER HABITAT, EXCEPTIONAL WARMWATER HABITAT,
OR A STATE RESOURCE WATER IN RULES ADOPTED UNDER SECTION
6111.041 OF THE REVISED
CODE.
(7) IF INFORMATION IS AVAILABLE CONCERNING RESIDENT
FISHERY OR MACROINVERTEBRATE COMMUNITIES, OR BOTH, IN THE
HISTORICALLY CHANNELIZED WATERCOURSE, THE HISTORICALLY
CHANNELIZED WATERCOURSE DOES NOT SUPPORT A PARTICULARLY DIVERSE
OR UNIQUE WARMWATER HABITAT AS THAT TERM IS DEFINED IN RULES
ADOPTED UNDER SECTION 6111.041 OF THE
REVISED
CODE.
(8) PLANS FOR THE WORK HAVE BEEN SUBMITTED TO THE APPLICABLE SOIL AND
WATER CONSERVATION DISTRICT ORGANIZED UNDER CHAPTER 1515. of the Revised Code.
(9) A STORM WATER RUNOFF PLAN HAS BEEN DEVELOPED FOR THE WATERSHED PRIOR
TO OR DURING
PLANNING AND DESIGN OF THE WORK AND THE WORK IS CONSISTENT WITH THE PLAN.
(D) As used in this section:
(1) "Existing sources" means any treatment works that were
built and operational under the terms of an NPDES permit prior to
the effective date of this section JULY 1, 1993, but
does
not include
expansions or upgrades of existing treatment works authorized in
rules adopted under section 6111.03 of the Revised Code after
that date.
(2) "Appropriate total maximum daily load procedures"
means the procedures, policies, and guidelines used by the
director prior to the effective date of this section JULY
1,
1993, or
subsequent revisions to those procedures established in rules
adopted in accordance with Chapter 119. of the Revised Code.
(3) "Antidegradation review" means the consideration by
the director of the technical, social, and economic need
demonstration completed by any person requesting to lower water
quality as provided in this section, including the public notice
of the application and, at the discretion of the director, a
public hearing on it.
Sec. 6131.14. The clerk of the board of county
commissioners shall certify to the county engineer immediately,
after the requirements of section 6131.12 of the Revised Code
have been met, a copy of the findings and orders of the board of
county commissioners in favor of an improvement. The engineer
shall make the necessary survey for the proposed improvement. He
THE ENGINEER shall make plans for structures, maps showing the location
of the
land proposed to be assessed, and profiles showing the cuttings
and gradient of the improvement and shall make an estimate of the
cost of the construction of the improvement, which shall include
actual construction cost, the cost of engineering, and the cost
of notices, publication, and other incidental expenses. He THE
ENGINEER shall recommend the maintenance district in which the improvement
shall
be placed. The assessment of the improvement for maintenance for
one year shall be added to the cost of construction in making the
actual assessment and shall be credited to the maintenance fund
of the district.
The county engineer shall set proper construction stakes
and shall note the intersection of the line of the improvement
with the apparent land boundaries of separate owners, township
and county lines, natural landmarks, road crossings, or other
lines or marks. He THE ENGINEER shall take and note any
necessary levels off the line of the improvement to determine the area of the
land
subject to drainage.
The engineer shall also establish, at intervals of not less
than one in each mile, in the most practicable permanent form,
and in locations where destruction or disturbance is improbable,
bench marks from which the original levels of the improvement can
be established. The bench marks and all levels of the
improvement shall be based upon some established elevation of the
geological survey of the United States, if any, in the county,
and the relation of any assumed elevation used by the engineer in
his THE work upon any improvement to the elevation established
by the
geological survey shall be accurately stated in his THE
ENGINEER'S report. The engineer shall make a plan of the work proposed to
be done, which shall show the grade, the depth, the excavating to be done, the
location of the permanent bench marks and their actual elevation
above or below the base elevation used, and such other data as in
the judgment of the engineer will aid in retracing lines, levels,
or other features of the improvement. The plan shall indicate
the profile and the nature of the excavation.
As soon as the engineer has completed the maps, profiles,
and plans for the improvement, he THE ENGINEER shall transmit
copies thereof
to the director of natural resources, the director of
transportation when a state highway is affected, and the board of
directors of any conservancy district within which any part of
the lands or streams affected by the proposed improvement may
lie. The director of natural resources, the director of
transportation, and the directors of the conservancy district
shall review the plans submitted and within thirty days file with
the county engineer a report indicating approval or, in case that
approval cannot be given, a report with recommendations.
The approval or report with recommendations, WHICH, WHERE
APPROPRIATE, SHALL INCLUDE
RECOMMENDATIONS REGARDING THE USE OF BEST MANAGEMENT PRACTICES THAT ARE
CONSISTENT WITH THE PRAYER OF THE PETITION,
shall be
transmitted by the engineer to the board of county commissioners,
who shall take notice of the approval or recommendations and
shall authorize the engineer to make any changes or alterations
that in the judgment of the board are necessary or desirable.
Upon receipt of approval of the plans by the director of
natural resources, the director of transportation, and the
directors of any conservancy districts affected, or upon
completion of any changes authorized by the board of county
commissioners, the engineer shall file with the clerk of the
board of county commissioners all maps, profiles, and plans as
provided by this section.
The engineer shall prepare specifications for the
construction of the improvement. The engineer shall specify a
width of temporary easement for construction purposes. The
specifications shall provide for spreading and leveling of spoil
banks and shall provide for erosion and sediment control through
the establishment of a sod or seeded strip not fewer than four
feet nor more than fifteen feet wide, measured at right angles to
the top of the ditch bank, on both sides of the ditch, except
where suitable vegetative cover exists. The strip or other such
controls shall be considered a part of the permanent improvement.
Sod or seeded strips established and maintained in excess of four
feet shall be compensated for by their removal from the taxable
valuation of the property of which they are a part. The engineer
shall make estimates of the cost of excavating and of the cost of
material and may divide the construction of the improvement into
construction areas as considered expedient. The engineer shall
make a note of all fences, floodgates, culverts, or bridges that
will be removed in constructing the improvement and of all
culverts or bridges that must be adjusted or the channel of which
must be enlarged to construct the improvement.
In estimating the cost of an improvement, the engineer may
include the cost of installing gates in fences on the reserved
right-of-way where needed to provide access for maintenance. The
gates shall be kept locked when requested by the owner and shall
be considered a part of the original improvement and subject to
maintenance as provided by sections 6137.01 to 6137.12 of the
Revised Code. The engineer shall make an estimate of the cost of
inspecting the work as it progresses and shall, with the
assistance of the prosecuting attorney, prepare forms for
contracts with bidders and forms of bid guaranties that meet the
requirements of section 153.54 of the Revised Code. Upon the
acceptance of the contract work, the engineer shall file with the
county recorder a property plat showing the general location of
the improvement and a statement describing the width of permanent
easement for maintenance as provided for in section 6137.12 of
the Revised Code. The engineer shall make an itemized bill of
the costs and expenses incurred in the proper discharge of duties
set forth in this section and shall file the maps, profiles,
plans, schedules, and reports with the clerk of the board of
county commissioners upon completing them.
Section 2. That existing sections 6111.01, 6111.12, and 6131.14 of the Revised
Code
are
hereby repealed.
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