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H. B. No. 231 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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A BILL
To amend sections 1501.33, 1521.04, 1522.03, and
1522.05, to enact sections 1522.10, 1522.101, and
1522.11 to 1522.20, and to repeal section 1522.07
of the Revised Code to establish a program for the
issuance of permits for the withdrawal and
consumptive use of waters from the Lake Erie
basin.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1501.33, 1521.04, 1522.03, and
1522.05 be amended and sections 1522.10, 1522.101, 1522.11,
1522.12, 1522.13, 1522.14, 1522.15, 1522.16, 1522.17, 1522.18,
1522.19, and 1522.20 of the Revised Code be enacted to read as
follows:
Sec. 1501.33. (A) Except as provided in divisions (B) and,
(C), and (D) of this section, no person shall allow a facility
that the person owns to withdraw waters of the state in an amount
that would result in a new or increased consumptive use of more
than an average of two million gallons of water per day in any
thirty-day period without first obtaining a permit from the
director of natural resources under section 1501.34 of the Revised
Code. The person shall submit an application for a permit to the
director on a form he the director prescribes, which application
shall declare and document all of the following:
(1) The facility's current withdrawal capacity per day if the
withdrawal is to occur at a facility already in operation;
(2) The total new or increased daily withdrawal capacity
proposed for the facility;
(3) The locations and sources of water proposed to be
withdrawn;
(4) The locations of proposed discharges or return flows;
(5) The locations and nature of proposed consumptive uses;
(6) The estimated average annual and monthly volumes and
rates of withdrawal;
(7) The estimated average annual and monthly volumes and
rates of consumptive use;
(8) The effects the withdrawal is anticipated to have with
respect to existing uses of water resources;
(9) A description of other ways the applicant's need for
water may be satisfied if the application is denied or modified;
(10) A description of the conservation practices the
applicant intends to follow;
(11) Any other information the director may require by rule.
Each application shall be accompanied by a nonrefundable fee
of one thousand dollars, which shall be credited to the water
management fund created under section 1501.32 of the Revised Code.
(B) A major utility facility that is subject to regulation
under Chapter 4906. of the Revised Code need not obtain a permit
under section 1501.34 of the Revised Code.
(C)(1) A public water system, as that term is defined in
section 6109.01 of the Revised Code, that withdraws waters of the
state in an amount that would result in a new or increased
consumptive use of more than two million gallons per day need not
obtain a permit under section 1501.34 of the Revised Code if any
of the following apply:
(a) The public water system was in operation on the effective
date of this section and no substantial changes are proposed for
that system except as specified in division (C)(1)(c) of this
section;.
(b) A public water system that is proposed to be constructed
or installed, or an existing system for which changes are
proposed, encompasses only water distribution facilities;.
(c) A public water system, other than one that encompasses
only water distribution facilities, is proposed to be constructed
or installed, or substantial changes in the design capacity of an
existing system, other than one that encompasses only water
distribution facilities, are proposed; the plans submitted for the
system to the director of environmental protection under section
6109.07 of the Revised Code declare and document the information
specified in division (A) of this section and rules adopted under
it as determined by the director of natural resources; and the
director of environmental protection has applied the criteria
specified in division (A) of section 1501.34 of the Revised Code
in reviewing and approving the plans as determined by the director
of natural resources.
(2) Any public water system that withdraws waters of the
state in an amount that would result in a new or increased
consumptive use of more than two million gallons per day and that
does not meet the criteria specified in divisions (C)(1)(a), (b),
or (c) of this section shall obtain a permit under section 1501.34
of the Revised Code. A person who submits plans for such a system
under section 6109.07 of the Revised Code may request the director
of natural resources in writing to consider those plans as an
application under this section. No later than twenty days after
receiving the request, the director shall notify the person of one
of the following:
(a) The plans declare and document the information specified
in division (A) of this section and rules adopted under it and are
accepted as an application under this section, and the person
shall submit to the director the application fee required under
division (A) of this section;.
(b) Additional specified information is necessary before the
director can accept the plans as an application;.
(c) The plans do not meet the requirements of division (A) of
this section and rules adopted under it and an application shall
be submitted in accordance with this section.
(D) A facility that is required to obtain a permit under
sections 1522.10 to 1522.20 of the Revised Code need not obtain a
permit under section 1501.34 of the Revised Code.
Sec. 1521.04. The chief of the division of soil and water
resources, with the approval of the director of natural resources,
may make loans and grants from the water management fund created
in section 1501.32 of the Revised Code to governmental agencies
for water management, water supply improvements, and planning and
may administer grants from the federal government and from other
public or private sources for carrying out those functions and for
the performance of any acts that may be required by the United
States or by any agency or department thereof as a condition for
the participation by any governmental agency in any federal
financial or technical assistance program. Direct and indirect
costs of administration may be paid from the fund.
The chief may use the water management fund for the purposes
of administering the water diversion and consumptive use permit
programs established in sections 1501.30 to 1501.35 of the Revised
Code and the withdrawal and consumptive use permit program
established under sections 1522.10 to 1522.20 of the Revised Code;
to perform watershed and water resources studies for the purposes
of water management planning; and to acquire, construct,
reconstruct, improve, equip, maintain, operate, and dispose of
water management improvements. The chief may fix, alter, charge,
and collect rates, fees, rentals, and other charges to be paid
into the fund by governmental agencies and persons who are
supplied with water by facilities constructed or operated by the
department of natural resources in order to amortize and defray
the cost of the construction, maintenance, and operation of those
facilities.
Sec. 1522.03. (A) Subject to the limitations established in
division (B) of section 1522.05 of the Revised Code, the director
of natural resources The chief of the division of soil and water
resources shall do both of the following:
(1) Adopt rules in accordance with Chapter 119. of the
Revised Code for the implementation, administration, and
enforcement of this chapter;
(2) Enforce enforce the great lakes-st. Lawrence river basin
water resources compact and take appropriate actions to effectuate
its purposes and intent.
(B) Subject to the limitations established in division (B) of
section 1522.05 of the Revised Code, any appropriate state agency
or governmental officer shall enforce the compact and take
appropriate actions to effectuate its purpose and intent.
Sec. 1522.05. (A) Pursuant to Section 9.2 of the great
lakes-st. Lawrence river basin water resources compact, the
governor may take such actions as are necessary for the initial
organization and operation of the great lakes-st. Lawrence river
basin water resources council created in Section 2.1 of the
compact. Agencies of the state are hereby authorized to cooperate
with the council.
(B)(1) The governor, the department of natural resources, or
any other agency of the state shall not adopt rules or implement
any program regulating the use, withdrawal, consumptive use, or
diversion of water pursuant to Sections 4.10 and 4.12.2 of the
compact unless the general assembly enacts legislation after the
effective date of this section authorizing the implementation of
the program or adoption of rules.
In addition, the The governor, the department of natural
resources, or any other agency of the state shall not adopt rules
or implement any mandatory program governing water conservation
and efficiency pursuant to Section 4.2 of the compact related to
the great lakes-st. Lawrence river basin water resources compact
unless the general assembly enacts legislation after the effective
date of the compact authorizing the implementation of the program
or adoption of the rules. However, the The governor, the
department of natural resources, or any other agency of the state
may shall not adopt rules concerning and may implement voluntary
establishing a mandatory water conservation
and efficiency
programs program without authorization from the general assembly.
Such voluntary programs shall not include any mandatory
requirements.
(2) Division (B)(1) of this section does not prohibit the
effectuation of Sections 4.8 and 4.9 of the compact after the
effective date of the compact or prohibit the continued
implementation and enforcement by the governor or applicable
agencies of this state of laws, rules, or programs regulating the
use, withdrawal, consumptive use, or diversion of water that are
in effect on or before the effective date of this section.
Sec. 1522.10. As used in sections 1522.10 to 1522.20 of the
Revised Code:
(A) "Baseline facility" means a facility identified in the
baseline report, a facility added to the baseline report under
section 1522.16 of the Revised Code, or any other facility that
has commenced withdrawal and consumptive use activities since the
submission of the baseline report and prior to the effective date
of this section.
(B) "Baseline facility abandonment" means the voluntary and
affirmative termination of a baseline facility's withdrawal and
consumptive use capacity as listed in the baseline report.
"Baseline facility abandonment" does not include the nonuse or the
transfer of a baseline facility's withdrawal and consumptive use
capacity.
(C) "Baseline report" means a list of the withdrawal and
consumptive use capacities of facilities that was developed for
purposes of section 4.12 of the great lakes-st. Lawrence river
basin water resources compact by the department of natural
resources and submitted to the great lakes-st. Lawrence river
basin water resources council on December 8, 2009.
(D) "Capacity" means the ability of a facility's pumps,
pipes, and other appurtenances to withdraw and consumptively use
water when operated under intended normal operating conditions.
(E) "Consumptive use" does not include water purchased from a
public water supplier and, for purposes of determining a new or
increased capacity for consumptive use, is the use based on a
coefficient of consumptive use generally accepted in the
scientific community that most accurately reflects the process at
a facility.
(F) "Facility" means any site, installation, or building at
which water withdrawal and consumptive use activities take place
that is located at a property or on contiguous properties and that
is under the direction of either a private or public entity.
(G) "Facility abandonment" means the voluntary and
affirmative termination of a facility's withdrawal and consumptive
use capacity as listed in a withdrawal and consumptive use permit
issued under section 1522.11 of the Revised Code. "Facility
abandonment" does not include the nonuse or the transfer of a
facility's withdrawal and consumptive use capacity.
(H) "High quality water" means a river or stream that has
been designated by the environmental protection agency under
Chapter 3745-1 of the Administrative Code not later than the
effective date of this section as an exceptional warm water
habitat, cold water habitat, outstanding state water, or superior
high-quality water. However, "high quality water" does not include
outstanding state waters that are designated as such due to
exceptional recreational values.
(I) "Increased capacity" does not include any capacity that
results from alterations or changes made at a facility that
replace existing capacity without increasing the capacity of the
facility.
(J) "Recognized navigational channel" means that portion of a
river or stream extending from bank to bank that is, as of the
effective date of this section, a state or federally maintained
navigational channel.
(K) "River or stream" means any river or stream in the Lake
Erie watershed identified on the effective date of this section in
the gazateer of Ohio streams.
(L) "River or stream under the influence of Lake Erie" means
that portion of a river or stream that has a bottom elevation at
or below the highest monthly long-term level of Lake Erie, as
designated by the United States army corp of engineers, of five
hundred seventy-one and nine-tenths feet above sea level and to
which both of the following apply:
(1) The portion of the river or stream is a direct tributary
of Lake Erie.
(2) The portion of the river or stream is a recognized
navigational channel.
"River or stream under the influence of Lake Erie" also
includes that portion of any river or stream that is a tributary
of Lake Erie that has a stream bottom elevation at or below five
hundred seventy-one and nine-tenths feet above sea level.
Sec. 1522.101. (A) For purposes of this chapter, with respect
to the definition of "source watershed" in section 1522.01 of the
Revised Code, the general assembly declares that "source
watershed" means the Lake Erie watershed. Further, the general
assembly declares as nonbinding the preference in that definition
for the "source watershed" to be the direct tributary stream
watershed from which water is withdrawn.
(B) Nothing in sections 1522.10 to 1522.20 of the Revised
Code shall limit a person's right to the reasonable use of ground
water, water in a lake, or any other watercourse in contravention
of Section 19b of Article I, Ohio Constitution.
Sec. 1522.11. (A) For purposes of the great lakes-st.
Lawrence river basin water resources compact, not later than one
hundred eighty days after the effective date of this section, the
chief of the division of soil and water resources shall establish
a program for the issuance of permits for the withdrawal and
consumptive use of water from the Lake Erie watershed. Upon
establishment of the program, the owner or operator of a facility
that is not otherwise exempt under section 1522.13 of the Revised
Code shall obtain a withdrawal and consumptive use permit from the
chief if the facility meets any of the following threshold
criteria:
(1) The facility has a new or increased capacity for
withdrawals and consumptive uses from Lake Erie or a river or
stream under the influence of Lake Erie of at least five million
gallons per day averaged over a ninety-day period.
(2) Except as provided in division (A)(3) of this section,
the facility has a new or increased capacity for withdrawals and
consumptive uses from any river or stream other than a river or
stream under the influence of Lake Erie or from ground water in
the Lake Erie watershed of at least two million gallons per day
averaged over a ninety-day period.
(3) The facility has a new or increased capacity for
withdrawals and consumptive uses of at least three hundred
thousand gallons per day averaged over a ninety-day period from
any river or stream to which both of the following apply:
(a) The river or stream is a high quality water.
(b) The river or stream has a drainage area of less than one
hundred square miles measured at the point where the withdrawal or
consumptive use occurs.
(B) Permits issued under this section shall be issued only
for the amount of withdrawal and consumptive use capacity of a
facility that exceeds threshold amounts established in division
(A) of this section. A permit shall neither address nor be
required for the portion of the withdrawal and consumptive use
capacity of the facility below that threshold amount.
(C) An applicant for a permit shall submit an application to
the chief on a form that the chief prescribes. The applicant shall
include with the application all of the following:
(1) The name and address of the applicant and of a contact
person for the applicant;
(2) A description of all of the following:
(a) The facility's current withdrawal capacity per day if the
withdrawal is to occur at a facility already in operation;
(b) The total new or increased daily withdrawal capacity
proposed for the facility;
(c) The locations and sources of water proposed to be
withdrawn;
(d) The locations of proposed discharges or return flows;
(e) The locations and nature of proposed consumptive uses and
the applicable consumptive use coefficient for the facility;
(f) The estimated average annual and monthly volumes and
rates of withdrawal;
(g) The estimated average annual and monthly volumes and
rates of consumptive use;
(h) Other ways the applicant's need for water may be
satisfied if the application is denied or modified.
(3) A nonrefundable application fee of one thousand dollars
the proceeds of which shall be credited to the water management
fund created in section 1501.32 of the Revised Code.
The chief shall not require an applicant to submit any
information with an application other than the information
required by divisions (C)(1) and (2) of this section.
(D) A permit is valid until the facility to which the permit
applies is the subject of facility abandonment. Once every five
years, the owner or operator of a facility shall certify to the
chief that the facility is in compliance with the permit that has
been issued for the facility.
(E) No person that is required to do so shall fail to apply
for and receive a withdrawal and consumptive use permit.
(F) A permit issued under this section shall include terms
and conditions restricting the withdrawal and consumptive use by a
facility to amounts not exceeding the capacity of the facility.
Sec. 1522.12. (A) In making the decision to issue or deny a
withdrawal and consumptive use permit, the chief of the division
of soil and water resources shall apply the criteria established
in section 4.11 of the great lakes-st. Lawrence river basin water
resources compact.
For purposes of applying the criteria established in section
4.11 of the great lakes-st. Lawrence river basin water resources
compact, all of the following apply:
(1) If a withdrawal and consumptive use by a facility from
Lake Erie or a river or stream under the influence of Lake Erie
will not lower the water level in Lake Erie by one inch over a
five-year period from the long-term mean Lake Erie water level of
five hundred seventy-one and nine-tenths feet above sea level, it
is irrebuttably presumed that the withdrawal and consumptive use
will not cause a significant individual or cumulative adverse
impact to the quantity or quality of waters and water dependent
natural resources and the Lake Erie watershed.
(2) If a withdrawal and consumptive use by a facility from
ground water or from a river or stream that is not a river or
stream under the influence of Lake Erie will not lower the water
level in Lake Erie by one-half inch over a five-year period from
the long-term mean Lake Erie water level of five hundred
seventy-one and nine-tenths feet above sea level, it is
irrebuttably presumed that the withdrawal and consumptive use will
not cause a significant individual or cumulative adverse impact to
the quantity or quality of waters and water dependent natural
resources and the Lake Erie watershed.
(3) A withdrawal and consumptive use from any river or stream
that is a high quality water with a drainage area of less than one
hundred square miles has or will have no significant individual or
cumulative adverse impacts on the Lake Erie watershed unless the
withdrawal and consumptive use adversely impacts the high quality
water as determined by the chief in accordance with rules adopted
under section 1522.14 of the Revised Code.
(B) The chief shall not submit an application for a
withdrawal and consumptive use permit for regional review to the
regional body as defined in section 1.2 of the great lakes-st.
Lawrence river basin water resources compact unless regional
review is agreed to by the applicant for the permit.
(C) The chief shall issue a withdrawal and consumptive use
permit for a facility only if the chief determines that a facility
meets all of the criteria established in section 4.11 of the great
lakes-st. Lawrence river basin water resources compact.
(D) A withdrawal or consumptive use is reasonable under
section 4.11.5 of the great lakes-st. Lawrence river basin water
resources compact unless a determination is made that the
withdrawal or consumptive use is not reasonable by a court of
competent jurisdiction in this state pursuant to section 1521.17
of the Revised Code. This division does not provide standing to
the department of natural resources to bring suit under the
reasonable use doctrine.
Sec. 1522.13. The following are exempt from the requirement
to obtain a withdrawal and consumptive use permit:
(A) A facility or proposed facility that has a withdrawal and
consumptive use capacity or proposed capacity below the threshold
amounts established in divisions (A)(1) to (3) of section 1522.11
of the Revised Code;
(B) A baseline facility that has not increased its withdrawal
and consumptive use capacity beyond the capacity listed in the
baseline report and beyond the thresholds established in section
1522.11 of the Revised Code;
(C) A facility that is required to increase its withdrawal
and consumptive use capacity as a result of legal requirements
established by federal, state, or local governmental authorities;
(D) A facility making a withdrawal and consumptive use from
nonchannelized surface water that is not a river or stream or from
an impoundment of water that is isolated and does not depend
entirely on ground water for replenishment such as a farm pond,
golf course pond, or other similar retention pond;
(E) A facility that is establishing a new or is increasing
its withdrawal and consumptive use capacity as a result of an
emergency condition that, without the new or increased withdrawal
and consumptive use capacity, will result in imminent harm to
human health or property;
(F) A facility that is establishing a new or is increasing
its withdrawal and consumptive use capacity for testing purposes
only if the testing period will last no longer than thirty-six
months;
(G) A facility that is establishing a new or is increasing
its withdrawal and consumptive use capacity in order to respond to
a humanitarian crisis if the increased capacity is necessary to
assist in the management of that crisis;
(H) A facility that is exempt from the requirement to obtain
a permit under divisions (B) and (C) of section 1501.33 of the
Revised Code;
(I) A facility that undergoes a ground water review under
section 1514.13 of the Revised Code;
(J) A facility with ground water or surface water withdrawals
or consumptive uses that are subject to regulation under a state
or federal law other than sections 1522.10 to 1522.20 of the
Revised Code and other than a permit issued under Chapter 6111. of
the Revised Code and rules adopted under it;
(K) A facility that is withdrawing or consumptively using
water from an off-stream impoundment that has been substantially
filled by a withdrawal from a baseline facility or from a facility
for which a withdrawal and consumptive use permit has been issued.
Sec. 1522.14. The chief of the division of soil and water
resources shall adopt rules in accordance with Chapter 119. of the
Revised Code that establish standards for what constitutes
significant individual or cumulative adverse impact to a high
quality water with a drainage area of less than one hundred square
miles for purposes of division (A)(3) of section 1522.12 of the
Revised Code.
Sec. 1522.15. (A)(1) A permittee may transfer a withdrawal
and consumptive use permit upon the sale or transfer of a
facility. In addition, the owner of a baseline facility may
transfer the withdrawal and consumptive use capacity of the
baseline facility upon the sale or transfer of the baseline
facility. Transferred capacity of a baseline facility shall not
require a withdrawal and consumptive use permit. Notice of a
transfer shall be given to the chief of the division of soil and
water resources in a manner prescribed by the chief.
(2) If a permittee sells a portion of a facility for which a
withdrawal and consumptive use permit has been issued, the
permittee may transfer the applicable portion of the withdrawal
and consumptive use capacity authorized by the withdrawal and
consumptive use permit. The permittee shall provide notice of such
a transfer to the chief in a manner prescribed by the chief. Upon
receipt of the notice and if a permit is required based on the
threshold amounts established in divisions (A)(1) to (3) of
section 1522.11 of the Revised Code, the chief shall issue a new
permit to the permittee who transferred the portion of the
facility and a new permit to the transferee. Any new permits shall
reflect the transfer of the portion of the withdrawal and
consumptive use capacity.
(3) If the owner of a baseline facility sells a portion of
the baseline facility, the owner may transfer the applicable
portion of the withdrawal and consumptive use capacity listed in
the baseline report for that facility. The owner shall provide
notice of such a transfer to the chief in a manner prescribed by
the chief. The chief shall not require the owner of the baseline
facility or the transferee to obtain a withdrawal and consumptive
use permit. Rather, the chief shall update the baseline report to
reflect the transfer.
(B) The chief shall remove a facility from the baseline
report when the facility is subject to baseline facility
abandonment. However, a baseline facility shall not be removed
from the baseline report for the nonuse or the transfer of the
facility's baseline capacity.
Sec. 1522.16. (A) The owner or operator of a facility may
petition the chief of the division of soil and water resources for
either of the following:
(1) Inclusion in the baseline report if the owner or operator
believes that the facility was erroneously excluded from the
report;
(2) The amendment of the amount of a withdrawal and
consumptive use or other information included in the baseline
report regarding the facility if the owner or operator believes
that the information is incorrect.
(B) The chief shall issue an order either approving or
disapproving a petition submitted under this section. The chief
shall issue the order based on a thorough examination of the
circumstances concerning the petition.
(C) An order of the chief issued under this section may be
appealed in accordance with section 1522.19 of the Revised Code.
(D) The chief shall establish procedures for the submission
of petitions under this section.
Sec. 1522.17. (A) The chief of the division of soil and
water resources shall establish a voluntary water conservation
program that is applicable to all facilities that are the subjects
of withdrawal and consumptive use permits. The owner or operator
of a facility may participate in the program. If the owner or
operator chooses to participate in the program, the owner or
operator shall develop best management water conservation
practices that are economically feasible and applicable to the
facility. The owner or operator has discretion to determine which
practices are best management practices for purposes of the
voluntary program. Any reporting that is required under the
program is proprietary and shall be confidential and not subject
to section 149.43 of the Revised Code. Nothing in this chapter
authorizes the chief or the director of natural resources to adopt
rules requiring mandatory conservation of water resources. The
general assembly shall not amend this division in any manner that
would require a mandatory water conservation program without at
least a two-thirds majority vote of the senate and house of
representatives.
This division complies with the requirements of section
4.11.3 of the great lakes-st. Lawrence river basin water resources
compact.
(B) Every five years, the chief shall make an assessment of
the cumulative impacts of withdrawals and consumptive uses from
the waters of the Lake Erie watershed for purposes of section 4.15
of the great lakes-st. Lawrence river basin water resources
compact. The assessment shall be based on reports, data, and other
information relating directly to withdrawals and consumptive uses
by facilities that have received a withdrawal and consumptive use
permit under this chapter. The chief shall prepare a report of the
assessment and shall submit a copy of it to the governor, the
speaker of the house of representatives, and the president of the
senate.
This division complies with the requirements of section
4.11.2 of the great lakes-st. Lawrence river basin water resources
compact as they relate to the assessment of significant cumulative
adverse impacts.
Sec. 1522.18. (A) There is hereby created the water
resources review commission consisting of five members appointed
by the governor with the advice and consent of the senate. The
commission shall hear appeals that are made under section 1522.19
of the Revised Code. Of the initial members appointed to the
commission, one shall serve a term of three years, two shall serve
a term of four years, and two shall serve a term of five years as
designated by the governor. Thereafter, terms of office shall be
five years. Each member shall hold office from the date of
appointment until the end of the term for which the appointment
was made. Each vacancy occurring on the commission shall be filled
by appointment within sixty days after the vacancy occurs. Any
member appointed to fill a vacancy occurring prior to the
expiration of the term for which the member's predecessor was
appointed shall hold office for the remainder of that term. A
member shall continue in office subsequent to the expiration date
of the member's term until the member's successor takes office. A
member may be reappointed.
(B) Two of the appointees to the commission shall be experts
in economic development, two shall be experts in water resource
management, and one shall be a member of the public who is an
attorney at law who is admitted to practice in this state and is
familiar with the laws related to water resources. Not more than
three members shall be members of the same political party.
(C) Three members of the commission constitute a quorum, and
no action of the commission shall be valid unless it has the
concurrence of at least a majority of the members. The commission
shall keep a record of its proceedings. Annually one member shall
be elected as chairperson and another member shall be elected as
vice-chairperson for terms of one year.
(D) The commission shall adopt rules governing the procedure
for appeals conducted under section 1522.19 of the Revised Code
and may adopt rules governing its own internal management that do
not affect private rights.
(E) The governor may remove a member of the commission from
office for inefficiency, neglect of duty, malfeasance,
misfeasance, or nonfeasance after delivering to the member the
charges against the member in writing with at least ten days'
written notice of the time and place at which the governor will
publicly hear the member, either in person or by counsel, in
defense of the charges against the member. If the member is
removed from office, the governor shall file in the office of the
secretary of state a complete statement of the charges made
against the member and a complete report of the proceedings. The
action of the governor removing a member from office is final.
(F) A member shall be paid as compensation for work as a
member one hundred fifty dollars per day when actually engaged in
the performance of work as a member and when engaged in travel
necessary in connection with that work. In addition to monetary
compensation, a member shall be reimbursed for all traveling,
hotel, and other expenses, in accordance with the current travel
rules of the office of budget and management, necessarily incurred
in the performance of the member's work as a member.
Sec. 1522.19. (A) A person having a direct economic interest
that is or may be adversely affected by a decision or order of the
chief of the division of soil and water resources under this
chapter may appeal the decision or order. The appeal shall be made
by filing a notice of appeal with the water resources review
commission for review of the decision or order not later than
thirty days after the decision or order is made. The person also
shall file a copy of the notice of appeal with the chief not later
than three days after filing the notice of appeal with the
commission. The notice of appeal shall contain a description of
the decision or order complained of and the grounds on which the
appeal is based. The commission has exclusive original
jurisdiction to hear and decide such appeals. The filing of a
notice of appeal under this division does not operate as a stay of
any decision or order of the chief.
(B) A permittee, if applicable, and the appellee, the chief,
and other interested persons shall be given written notice of the
date, time, and location of a hearing on the appeal at least five
days prior to the hearing. The hearing shall be of record.
(C) The commission shall affirm the decision or order of the
chief unless the commission determines by a preponderance of the
evidence that it is arbitrary, capricious, or otherwise
inconsistent with law; in that case the commission may modify the
decision or order of the chief or vacate it and remand it to the
chief for further proceedings that the commission may direct. The
commission shall render a decision not later than thirty days
after the hearing.
(D) The chairperson of the commission, under conditions that
the chairperson prescribes, may grant temporary relief that the
chairperson considers appropriate pending final determination of
an appeal if all of the following conditions are met:
(1) All parties to the appeal have been notified and given an
opportunity for a hearing on the request for temporary relief.
(2) The person requesting relief shows that there is a
substantial likelihood that the person will prevail on the merits.
(3) The relief will not adversely affect public health or
safety or cause significant imminent environmental harm to water
resources.
(E) A party that is aggrieved or adversely affected by a
decision of the water resources review commission may appeal to
the court of appeals for the county in which the activity
addressed by the decision of the commission occurred, is
occurring, or will occur. The appeal shall be filed not later than
thirty days after issuance of the decision of the commission. The
court shall confine its review to the record certified by the
commission. The court, upon motion, may grant temporary relief
that it considers appropriate pending final disposition of the
appeal if all of the following apply:
(1) All parties to the appeal have been notified and given an
opportunity to be heard on the request for temporary relief.
(2) The person requesting relief shows that there is a
substantial likelihood that the person will prevail on the merits.
(3) The relief will not adversely affect public health or
safety or cause significant imminent environmental harm to water
resources.
The court shall affirm the decision of the commission unless
the court determines that it is arbitrary, capricious, or
otherwise inconsistent with law; in that case the court shall
vacate the decision and remand it to the commission for further
proceedings that the court may direct.
(F) The water resources review commission or a court of
appeals shall not award attorney's fees to any party to an action
under this section.
(G) An appeal may not be taken under this section if the
subject of the appeal involves section 4.9 of the great lakes-st.
Lawrence river basin water resources compact.
Sec. 1522.20. (A)(1) The chief of the division of soil and
water resources may issue an order to a person that the chief
determines has violated, is violating, or is threatening to
violate any provisions of this chapter, rules adopted under it, or
a withdrawal and consumptive use permit. The order shall identify
the facility where the violation has occurred, is occurring, or is
threatened to occur, the specific violation, and actions that the
owner or operator of the facility must take to comply with the
order. The order shall establish a reasonable date by which the
owner or operator must comply with the order.
(2) An order issued under division (A)(1) of this section
shall be in writing and shall contain a finding of the facts on
which the order is based. Notice of the order shall be given by
certified mail to each person whose rights, duties, or privileges
are affected. Notice also shall be posted on the web site of the
department of natural resources in a manner prescribed by the
chief.
(B) The attorney general, upon the request of the chief, may
bring an action for injunction against a person who has violated,
is violating, or is threatening to violate any provisions of this
chapter, rules adopted under it, a withdrawal and consumptive use
permit, or an order of the chief issued under division (A) of this
section. The action shall be brought in the court of common pleas
of the county in which the violation has occurred, is occurring,
or is threatened to occur. The court of common pleas in which an
action for injunction is filed has jurisdiction to and shall grant
preliminary and permanent injunctive relief upon a showing that
the person against whom the action is brought has violated, is
violating, or is threatening to violate any provisions of this
chapter, rules adopted under it, a permit, or an order of the
chief.
Section 2. That existing sections 1501.33, 1521.04, 1522.03,
and 1522.05 and section 1522.07 of the Revised Code are hereby
repealed.
Section 3. For purposes of adopting rules under section
1522.14 of the Revised Code, as enacted by this act, regarding the
determination of what constitutes significant individual or
cumulative adverse impact to a high quality water with a drainage
area of less than one hundred square miles, the Chief of the
Division of Soil and Water Resources in the Department of Natural
Resources shall do both of the following:
(A) Convene an advisory group consisting of interested
parties to advise the Chief;
(B) Ensure that at least one member of the advisory group
represents The Nature Conservancy.
Section 4. The General Assembly hereby declares that the
purpose of this act is to protect private property rights
associated with surface and ground water in Ohio; to promote good
stewardship of Ohio's water resources; and to promote economic
development and job creation in Ohio by recognizing that abundant
fresh water is a highly desirable commodity.
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