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Sub. H. B. No. 231 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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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, Coley, Daniels, Hite, Jordan
A BILL
To amend sections 1501.32, 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 1501.32, 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. 1501.32. (A) No person shall divert more than one
hundred thousand gallons per day of any waters of the state out of
the Lake Erie or Ohio river drainage basins to another basin
without having a permit to do so issued by the director of natural
resources. An application for such a permit shall be filed with
the director upon such forms as the director prescribes. The
application shall state the quantity of water to be diverted, the
purpose of the diversion, the life of the project for which the
water is to be diverted, and such other information as 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, which is hereby
created.
(B) The director shall not approve a permit application filed
under this section if the director determines that any of the
following applies:
(1) During the life of the project for which the water is to
be diverted, some or all of the water to be diverted will be
needed for use within the basin.
(2) The proposed diversion would endanger the public health,
safety, or welfare.
(3) The applicant has not demonstrated that the proposed
diversion is a reasonable and beneficial use and is necessary to
serve the applicant's present and future needs.
(4) The applicant has not demonstrated that reasonable
efforts have been made to develop and conserve water resources in
the importing basin and that further development of those
resources would engender overriding, adverse economic, social, or
environmental impacts.
(5) The proposed diversion is inconsistent with regional or
state water resources plans.
(6) The proposed diversion, alone or in combination with
other diversions and water losses, will have a significant adverse
impact on in-stream uses or on economic or ecological aspects of
water levels.
(7) The proposed diversion out of the Lake Erie watershed
does not qualify as an exception to the prohibition against
diversions from the great lakes basin that is established under
section 1522.01 of the Revised Code.
The director may hold public hearings upon any application
for a permit.
(C) Whenever the director receives an application under this
section to divert water out of the Lake Erie drainage basin, the
director shall notify the governors and premiers of the other
great lakes states and provinces, the appropriate water management
agencies of those states and provinces, and, when appropriate, the
international joint commission and shall solicit their comments
and concerns regarding the application. In the event of an
objection to the proposed diversion, the director shall consult
with the affected great lakes states and provinces to consider the
issues involved and seek mutually agreeable recommendations.
Before rendering a decision on the permit application, the
director shall consider the concerns, comments, and
recommendations of the other great lakes states and provinces and
the international joint commission, and, in accordance with
section 1109 of the "Water Resources Development Act of 1986," 100
Stat. 4230, 42 U.S.C.A. 1962d-20, the director shall not approve a
permit application for any diversion to which that section
pertains unless that diversion is approved by the governor of each
great lakes state as defined in section 1109(c) of that act.
(D) The director shall determine the period for which each
permit approved under this section will be valid and specify the
expiration date, but in no case shall a permit be valid beyond the
life of the project as stated in the application.
The director shall establish rules providing for the transfer
of permits. A permit may be transferred on the conditions that the
quantity of water diverted not be increased and that the purpose
of the diversion not be changed.
(E)(1) Within a time established by rule, the director shall
do one of the following:
(a) Notify the applicant that an application the applicant
filed under this section is approved or denied and, if denied, the
reason for denial;
(b) Notify the applicant of any modification necessary to
qualify the application for approval.
(2) Any person who receives notice of a denial or
modification under division (E)(1) of this section is entitled to
a hearing under Chapter 119. of the Revised Code if the person
sends a written request for a hearing to the director within
thirty days after the date on which the notice is mailed or
otherwise provided to the applicant.
(F) The director shall revoke a permit under this section
without a prior hearing if the director determines that the
quantity of water being diverted exceeds the quantity stated in
the permit application.
The director may suspend a permit if the director determines
that the continued diversion of water will endanger the public
health, safety, or welfare. Before suspending a permit, the
director shall make a reasonable attempt to notify the permittee
that the director intends to suspend the permit. If the attempt
fails, notification shall be given as soon as practicable
following the suspension. Within five days after the suspension,
the director shall provide the permittee an opportunity to be
heard and to present evidence that the continued diversion of
water will not endanger the public health, safety, or welfare.
If the director determines before the expiration date of a
suspended permit that the diversion of water can be resumed
without danger to the public health, safety, or welfare, the
director shall, upon request of the permittee, reinstate the
permit.
(G) Any six or more residents of this state may petition the
director for an investigation of a withdrawal of water resources
that they allege is in violation of a permit issued under this
section.
The petition shall identify the permittee and detail the
reasons why the petitioners believe that grounds exist for the
revocation or suspension of the permit under this section.
Upon receipt of the petition, the director shall send a copy
to the permittee and, within sixty days, make a determination
whether grounds exist for revocation or suspension of the permit
under this section.
(H) Each permittee shall submit to the director an annual
report containing such information as the director may require by
rule.
(I) The director shall issue a permit under division (A) of
this section to any person who lawfully diverted more than one
hundred thousand gallons per day of any waters of the state out of
the Ohio river drainage basin during the calendar year ending
October 14, 1984. A person who is eligible for a permit under this
division shall file an application under division (A) of this
section not later than one hundred eighty days after the effective
date of this amendment April 6, 2007.
A person who applies for a permit under this division need
not pay the application fee that is otherwise required under
division (A) of this section. In addition, divisions (B) to (H) of
this section and rules adopted under section 1501.31 of the
Revised Code do not apply to an application that is filed or a
permit that is issued under this division.
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)(A) Adopt rules in accordance with Chapter 119. of the
Revised Code for the implementation, administration, and
enforcement of this chapter sections 4.8 and 4.9 of the great
lakes-st. Lawrence river basin water resources compact;
(2)(B) 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.
(E) "Consumptive use" has the same meaning as in section
1522.01 of the Revised Code. For purposes of determining a new or
increased capacity for consumptive use, "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 or the use based on facility specific data,
whichever is more accurate.
(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.
"Facility" includes any site, installation, building, or service
area of a public water system at or within which water withdrawal
and consumptive use activities take place.
(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) "Public water system" has the same meaning as in section
6109.01 of the Revised Code.
(K) "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.
(L) "River or stream" means a named body of water running or
flowing, either continually or intermittently, on the earth's
surface or a channel in which such flow occurs.
(M) "River or stream under the influence of Lake Erie" means
that portion of any river or stream that has a bottom elevation at
or below the long-term monthly mean level of Lake Erie, as
designated by the United States army corps of engineers, of five
hundred seventy-one and nine-tenths feet above the international
great lakes datum (IGLD) 1985 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.
The definition of "river or stream under the influence of
Lake Erie" applies only to that term as it is used in sections
1522.10 to 1522.20 of the Revised Code.
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.
(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, when operating under intended operating
conditions, has a new or increased capacity for withdrawals or
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, when operating under intended operating conditions,
has a new or increased capacity for withdrawals or 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, when operating under intended operating
conditions, has a new or increased capacity for withdrawals or
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 or 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) The environmentally sound and economically feasible water
conservation measures to be undertaken by the applicant;
(i) 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 by a facility from Lake Erie or a river
or stream under the influence of Lake Erie results in a
consumptive use that is less than one and five-tenths per cent of
the long-term mean annual runoff from the Ohio portion of the Lake
Erie watershed, 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.
Division (A)(1) of this section does not apply to high quality
water.
(2) If a withdrawal by a facility from ground water or a
river or stream that is not a river or stream under the influence
of Lake Erie results in a consumptive use that is less than
seventy-five one hundredths of one per cent of the long-term mean
annual runoff from the Ohio portion of the Lake Erie watershed, 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. Division (A)(2) of
this section does not apply to high quality water.
(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.
Within one hundred eighty days of the effective date of this
section and for purposes of making the calculations required under
divisions (A)(1) and (2) of this section, the chief of the
division of soil and water resources shall establish the long-term
mean annual runoff from the Ohio portion of the Lake Erie
watershed. Beginning ten years after the effective date of this
section and every ten years thereafter, the chief shall update the
long-term mean annual runoff utilizing the best available
published hydrologic data collected over the previous twenty
years.
(B) The chief shall not submit an application for a
withdrawal and consumptive use permit for regional review under
section 4.5.2(c)(ii) of the great lakes-st. Lawrence river basin
water resources compact to the regional body as defined in section
1.2 of the 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 or state 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. The exemption
established by this division does not apply to a facility making a
withdrawal and consumptive use for industrial purposes or for
public water supply purposes.
(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 not longer than twenty-four
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 new or 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 is subject to regulation under Chapter
1514. of the Revised Code;
(J) A facility that purchases all of its water from a public
water system;
(K) 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. However, the exemption from regulation under a state
law established by this division does not apply with respect to
state law governing either of the following:
(1) A permit issued under Chapter 6111. of the Revised Code;
(2) A permit issued under section 1501.34 of the Revised
Code.
(L) 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;
(M) A facility that is a public water system that is
increasing its withdrawal or consumptive use capacity and the
increase is directly related to supplying a major public utility
that is subject to regulation under Chapter 4906. of the Revised
Code.
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 governing the regulation of withdrawals and
consumptive uses from high quality water as referred to in
division (A)(3) of section 1522.12 of the Revised Code. The rules
shall 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 provided to the chief of the division of soil
and water resources in a manner prescribed by the chief.
(2) If a permittee sells or transfers 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.
(4) No person shall sell or transfer a withdrawal and
consumptive use permit for purposes of evading the requirements
established in sections 1522.10 to 1522.20 of the Revised Code.
(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 adopt rules in accordance with Chapter
119. of the Revised Code that establish procedures for the
submission of petitions under this section.
Sec. 1522.17. (A) The owner or operator of a facility for
which a withdrawal and consumptive use permit has been issued
shall utilize environmentally sound and economically feasible
water conservation measures in compliance with section 4.11.3 of
the great lakes-st. Lawrence river basin water resources compact.
The owner or operator may implement those measures in the form of
best management practices that are applicable to the facility. The
owner or operator has discretion to determine which practices are
best management practices. An owner or operator that implements
such measures is deemed to be in compliance with section 4.11.3 of
the great lakes-st. Lawrence river basin water resources compact.
Any reporting that is required by the chief of the division of
soil and water resources for purposes of this division is
proprietary and shall be confidential and not subject to section
149.43 of the Revised Code.
(B) 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
enact any law that would require a mandatory water conservation
program without at least a two-thirds majority vote of the senate
and house of representatives.
Divisions (A) and (B) of this section comply with the
requirements of section 4.11.3 of the great lakes-st. Lawrence
river basin water resources compact.
(C) 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 in accordance with
Chapter 119. of the Revised Code 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 sections
1522.10 to 1522.20 of the Revised Code 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 1501.32, 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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