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Am. H. B. No. 473 As Enrolled
(129th General Assembly)
(Amended House Bill Number 473)
AN ACT
To amend sections 1501.32, 1501.33, 1521.04, 1522.03,
and 1522.05, to enact sections 1522.10, 1522.101,
1522.11 to 1522.13, 1522.131, and 1522.14 to
1522.21, 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
and to establish other requirements related to the
implementation of the Great Lakes-St. Lawrence
River Basin Water Resources Compact.
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, 1522.131, 1522.14, 1522.15, 1522.16, 1522.17,
1522.18, 1522.19, 1522.20, and 1522.21 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 watershed 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 Ohio river watershed.
(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.
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)(D)(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)(D)(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)(E) 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)(F) 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)(G) 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.
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 or operates 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 Prior to developing a new or increased
withdrawal or consumptive use capacity that would facilitate a
withdrawal requiring a permit under this section, an owner or
operator of a facility shall submit an application for a permit to
the director on a form he the director prescribes, which. The
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 applies:
(a) The public water system was in operation on the effective
date of this section June 29, 1988, 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 division
(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 1522.21 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 1522.21 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 all 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 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;
(C) Adopt rules in accordance with Chapter 119. of the
Revised Code for the development, implementation, administration,
and enforcement of any permit program established under this
chapter.
Rules adopted under this section shall be no more stringent
than the great lakes-st. Lawrence river basin water resources
compact. The chief shall convene a working group consisting of
parties with interests in Lake Erie, the Lake Erie watershed, and
the great lakes-st. Lawrence river basin water resources compact.
The working group shall consult with the chief regarding the
adoption of rules under this section.
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 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 unless the
general assembly enacts legislation after the effective date of
the compact authorizing the implementation of the program or
adoption of rules. However, the governor, the department of
natural resources, or any other agency of the state may adopt
rules concerning and may implement voluntary water conservation
and efficiency programs 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 The
chief of the division of soil and water resources shall adopt
voluntary watershedwide goals, objectives, and standards for water
conservation and efficiency consistent with Section 4.2 of the
great lakes-st. Lawrence river basin water resources compact.
Sec. 1522.10. As used in sections 1522.10 to 1522.21 of the
Revised Code:
(A) "Baseline facility" means a facility identified in the
baseline report or a facility added to the baseline report under
section 1522.16 of the Revised Code.
(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 unless either of the following applies:
(1) The nonuse continues for fifteen consecutive years for a
facility with a potential withdrawal from Lake Erie or a
recognized navigational channel and the nonuse is not extended in
accordance with division (B) of section 1522.16 of the Revised
Code.
(2) For a facility to which division (B)(1) of this section
does not apply, the nonuse continues for thirty-six consecutive
months and is not extended in accordance with division (B) of
section 1522.16 of the Revised Code.
(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 water presented in
terms of withdrawal capacity, treatment capacity, distribution
capacity, or other capacity-limiting factors.
(E) "Compact" means the great lakes-st. Lawrence river basin
water resources compact set forth in section 1522.01 of the
Revised Code.
(F) "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.
(G) "Diversion" has the same meaning as in section 1522.01 of
the Revised Code.
(H) "Facility" means any site, installation, or building at
which water withdrawal and consumptive use activities take place
or are proposed to 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.
(I) "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 1522.12 of the Revised Code. "Facility
abandonment" does not include the nonuse or the transfer of a
facility's withdrawal and consumptive use capacity unless either
of the following applies:
(1) The nonuse continues for fifteen consecutive years for a
facility with a potential withdrawal from Lake Erie or a
recognized navigational channel and the nonuse is not extended in
accordance with division (B) of section 1522.16 of the Revised
Code.
(2) For a facility to which division (I)(1) of this section
does not apply, the nonuse continues for thirty-six consecutive
months and is not extended in accordance with division (B) of
section 1522.16 of the Revised Code.
(J) "High quality water" means a river or stream segment that
has been designated by the environmental protection agency under
Chapter 3745-1 of the Administrative Code as an exceptional warm
water habitat, cold water habitat, outstanding state water, or
superior high-quality water.
(K) "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.
(L) "Public water system" has the same meaning as in section
6109.01 of the Revised Code.
(M) "Recognized navigation channel" means that portion of a
river or stream extending from bank to bank that is a direct
tributary of Lake Erie and that, as of the effective date of this
section, is a state or federally maintained navigation channel.
(N) "River or stream" means a body of water running or
flowing, either continually or intermittently, on the earth's
surface or a channel in which such flow occurs.
(O) "Water" means ground or surface water contained within
the basin of the Lake Erie source watershed.
Sec. 1522.101. For purposes of sections 1522.10 to 1522.21
of the Revised Code, a reference to source watershed or the Lake
Erie source watershed means the Lake Erie watershed considered as
a whole.
Sec. 1522.11. (A) No person shall install or operate a
facility or equipment that results in a new or increased diversion
of any water out of the Lake Erie watershed to another watershed
without first obtaining a permit to do so issued by the chief of
the division of soil and water resources. An application for such
a permit shall be submitted to the chief on a form that the chief
prescribes. An application shall be accompanied by a nonrefundable
fee of one thousand dollars, which shall be credited to the water
management fund created in section 1501.32 of the Revised Code.
(B) The chief shall approve a permit application submitted
under this section only if the chief determines that it meets the
criteria required to qualify as an exception to the prohibition
against diversions established in Section 4.9 of the compact. The
chief shall issue or deny a permit through issuance of an order.
Sec. 1522.12. (A) For purposes of the 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 within the Lake Erie watershed that is not
otherwise exempt under section 1522.14 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 or consumptive uses from Lake Erie or a recognized
navigation channel of at least two and one-half million gallons
per day.
(2) Except as provided in division (A)(3) of this section,
the facility has a new or increased capacity for withdrawals or
consumptive uses from any river or stream or from ground water in
the Lake Erie watershed of at least one million gallons per day.
(3)(a) Except as provided in division (A)(3)(b) of this
section, the facility has a new or increased capacity for
withdrawals or consumptive uses from any river or stream in the
Lake Erie watershed that is a high quality water of at least one
hundred thousand gallons per day. Division (A)(3) of this section
does not apply to withdrawals and consumptive uses from
outstanding state waters that are designated as such by the
environmental protection agency due to their exceptional
recreational values.
(b) If a river or stream or segment thereof is designated as
a high quality water as of the effective date of this section, the
threshold established in division (A)(3)(a) of this section
applies to the river or stream or segment thereof and the entire
watershed upstream of that river, stream, or segment. If a river
or stream or segment thereof is designated as a high quality water
after the effective date of this section, the threshold
established in division (A)(3)(a) of this section applies to the
river or stream or segment thereof and the entire watershed
upstream of that river, stream, or segment, provided that the
director of environmental protection and the director of natural
resources, or their designees, jointly determine that the proposed
withdrawal or consumptive use would cause the high quality water
to lose its designation as a high quality water. If the directors
determine that the proposed withdrawal or consumptive use would
not cause the high quality water to lose that designation, the
threshold established in division (A)(2) of this section applies
to the withdrawal or consumptive use at a point beginning one
thousand feet upstream of the upstream end of the designated high
quality water segment or at a point beginning two times the length
of the river, stream, or segment that has been designated as a
high quality water, whichever is greater.
Upon establishment of the withdrawal and consumptive use
permit program under this division, the owner or operator of a
facility that is not otherwise exempt under section 1522.14 of the
Revised Code and that is subject to a threshold specified in
division (A)(1) or (2) of this section, after submitting an
application for a permit under this section and a determination by
the chief that the application is complete, may commence
installation of the facility or equipment that will result in a
new or increased withdrawal or consumptive use of water in the
Lake Erie watershed prior to issuance of the withdrawal and
consumptive use permit.
Upon establishment of the withdrawal and consumptive use
permit program under this division, the owner or operator of a
facility that is not otherwise exempt under section 1522.14 of the
Revised Code and that is subject to a threshold specified in
division (A)(3) of this section shall not install or operate the
facility or equipment that will result in a new or increased
withdrawal or consumptive use of water in the Lake Erie watershed
without first obtaining a withdrawal and consumptive use permit.
(B) Permits issued under this section shall be issued only
for the amount of withdrawal or consumptive use capacity of a
facility that meets or exceeds threshold amounts established in
division (A) of this section. A permit shall not 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, address, and telephone number of the applicant
and of a contact person for the applicant;
(2) The names, addresses, and other necessary contact
information of any other owners and operators of the facility;
(3) 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;
(j) Any other information the chief may require to adequately
consider the application.
(4) 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.
(D) Provided that a facility meets all applicable permit
conditions, a permit for the facility is valid until the facility
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.
(G) The chief shall issue or deny a permit not later than
ninety days after receipt of a complete application. If
applicable, the chief shall comply with the requirements regarding
prior notice established in Section 4.6 of the compact. The chief
shall issue or deny a permit through issuance of an order. The
chief shall issue a permit if all applicable criteria for
receiving the permit are met as provided in sections 1522.10 to
1522.21 of the Revised Code.
Sec. 1522.13. (A) The chief of the division of soil and
water resources shall issue a withdrawal and consumptive use
permit for a facility if the chief determines that the facility
meets all of the criteria established in Section 4.11 of the
compact.
(B) In applying the provision of the decision-making standard
established in Section 4.11.2 of the compact, the chief shall
require that a withdrawal or consumptive use will be implemented
so as to ensure that the withdrawal or consumptive use will result
in no significant individual or cumulative adverse impacts on the
quantity or quality of the waters and water dependent natural
resources of the great lakes basin considered as a whole or of the
Lake Erie source watershed considered as a whole. As part of the
evaluation of a permit application under Section 4.11.2 of the
compact, the chief shall do all of the following:
(1) Rely on the best generally accepted scientific methods
appropriate for this state derived from professionally accepted
resources and practices;
(2) Consider the long-term mean annual inflow and outflow of
the Lake Erie source watershed;
(3) Consider the withdrawal and the portion of the withdrawal
that is not returned to the Lake Erie source watershed.
(C) Impacts of a withdrawal or consumptive use on the
quantity or quality of waters and water dependent natural
resources of more localized areas that affect less than the great
lakes basin considered as a whole or the Lake Erie source
watershed considered as a whole shall be considered as a part of
the evaluation of whether a proposed withdrawal or consumptive use
is reasonable as provided in Section 4.11.5 of the compact.
(D) 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 compact to the regional body as
defined in Section 1.2 of the compact unless regional review is
agreed to by the applicant.
(E) Nothing in sections 1522.10 to 1522.21 of the Revised
Code shall be construed to affect, limit, diminish, or impair any
rights validly established and existing under the laws of this
state as of December 8, 2008, including, but not limited to,
sections 1506.10 and 1521.17 of the Revised Code, or to 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. 1522.131. (A) To encourage the development of innovative
water use practices and technologies that ensure sustainable water
use for industrial, commercial, residential, agricultural, or
public purposes, including recreational and cultural resources, as
a means to facilitate sustainable economic growth and job
creation, the chief of the division of soil and water resources,
with the approval of the director of natural resources, may issue
experimental use permits. An experimental use permit may be issued
in lieu of a withdrawal and consumptive use permit as determined
appropriate by the chief.
(B) An experimental use permit may be issued if all of the
following apply:
(1) The experimental use is reasonable based on a
consideration of the factors specified in Section 4.11.5 of the
compact.
(2) The experimental use will use no more water than is
necessary to determine the effectiveness and economic feasibility
of the experimental use.
(3) The experimental use does not reduce the protection
afforded the waters and water dependent natural resources of the
source watershed as defined in the compact below what is provided
in this chapter and rules adopted under it.
(C) The chief may refuse to issue an experimental use permit
if the chief determines that the proposed use will result in
significant individual or cumulative adverse impacts on the
quantity or quality of the waters and water dependent natural
resources of the great lakes basin considered as a whole or the
Lake Erie source watershed considered as a whole.
(D) The chief shall issue or deny a permit under this section
through issuance of an order.
(E) The chief shall establish the terms and conditions of an
experimental use permit and may suspend such a permit, at any
time, if the chief finds that its terms or conditions are being
violated or that its terms and conditions are inadequate to avoid
significant individual or cumulative adverse impacts on the
quantity or quality of the waters and water dependent natural
resources of the great lakes basin considered as a whole or the
Lake Erie source watershed considered as a whole.
(F) An experimental use permit issued under this section
shall expire not later than twenty-four months after the date of
issuance of the permit.
Sec. 1522.14. 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 1522.12
of the Revised Code;
(B) A facility that has a new or increased withdrawal
capacity above an applicable threshold amount established in
section 1522.12 of the Revised Code if either of the following
apply:
(1) Except as provided in division (B)(2) of this section,
the new or increased maximum daily withdrawal of the facility is
less than the applicable threshold amount when averaged over any
ninety-day period.
(2) The new or increased maximum daily withdrawal of the
facility is less than the applicable threshold amount when
averaged over any forty-five-day period with regard to a facility
with withdrawals from a river or stream that is a high quality
water when the withdrawals are made at a point where the area of
the watershed of the river or stream is less than one hundred
square miles but greater than fifty square miles.
Division (B) of this section does not apply to withdrawals of
a facility from a river or stream that is a high quality water
when the withdrawals are made at a point where the area of the
watershed of the river or stream is fifty square miles or less.
(C) A baseline facility that has not increased its withdrawal
and consumptive use capacity beyond the capacity listed in the
baseline report and beyond the threshold amounts established in
section 1522.12 of the Revised Code;
(D) An electric generating facility that increases its
consumptive use due to a requirement imposed by a federal
regulation that is unrelated to an increase in production at the
facility;
(E) A facility making a withdrawal and consumptive use from
an impoundment of water collected primarily from diffused surface
water sources, including a farm pond, golf course pond, nursery
pond, stormwater retention pond, or other private pond; or a
facility making a withdrawal and consumptive use from any stream
or river to augment the water supply of an impoundment of water if
the impoundment is used, at least in part, for firefighting
purposes. 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.
(F) A facility that must temporarily establish a new or
increased withdrawal and consumptive use capacity as a result of
an emergency for the duration of that emergency that, without the
new or increased withdrawal and consumptive use capacity, will
result in imminent harm to human health or property;
(G) A facility that is establishing a new or is increasing
its withdrawal and consumptive use capacity in compliance with an
experimental use permit issued under section 1522.131 of the
Revised Code;
(H) A facility that must temporarily establish a new or
increased withdrawal and consumptive use capacity in order to
respond to a humanitarian crisis for the duration of that crisis
if the new or increased capacity is necessary to assist in the
management of that crisis;
(I) A facility that is exempt from the requirement to obtain
a permit under division (B) or (C) of section 1501.33 of the
Revised Code;
(J) A facility that is subject to regulation under Chapter
1514. of the Revised Code;
(K) A facility that purchases all of its water from a public
water system;
(L) A facility that is withdrawing or consumptively using
water from an off-stream impoundment that has been substantially
filled with a stream withdrawal by a baseline facility or with a
stream withdrawal that is subject to a withdrawal and consumptive
use permit;
(M) A facility that is increasing its withdrawal or
consumptive use capacity directly related to supplying a major
electric generating facility that is subject to regulation under
Chapter 4906. of the Revised Code.
Sec. 1522.15. (A)(1) Transfer of a withdrawal and consumptive
use permit upon the sale or transfer of a facility may occur so
long as the location of the facility, the source of water, and the
withdrawal and consumptive use capacities do not change. Transfer
of the baseline withdrawal and consumptive use capacity of a
baseline facility upon the sale or transfer of the baseline
facility may occur so long as the location of the facility, the
source of water, and the withdrawal and consumptive use capacities
do not change. Transferred capacity of a baseline facility does
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 the owner of a facility for which a withdrawal and
consumptive use permit has been issued sells or transfers a
portion of the facility, transfer of the applicable portion of the
withdrawal and consumptive use capacity authorized by the
withdrawal and consumptive use permit may occur so long as the
location of the facility, the source of water, and the total
withdrawal and consumptive use capacities do not change. 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 for the transferred portion based on the
threshold amounts established in divisions (A)(1) to (3) of
section 1522.12 of the Revised Code, the chief shall issue a new
permit for the transferred portion of the facility to the
transferee and a modified permit for the remaining portion of the
facility to the original permittee upon a showing that the
transferee will meet the conditions of the original permit and all
applicable requirements of this chapter and rules adopted under
it. Any new permit shall reflect the portion of the withdrawal and
consumptive use capacity that has been transferred.
(3) If the owner of a baseline facility sells or transfers a
portion of the baseline facility, transfer of the applicable
portion of the withdrawal and consumptive use capacity listed in
the baseline report for that facility may occur so long as the
location of the facility, the source of water, and the total
withdrawal and consumptive use capacities do not change. 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, but shall update the baseline report to
reflect the transfer.
(4) The chief may deny a transfer under this section by
issuing an order denying the transfer and sending written notice
to the permittee and the transferee not later than thirty days
after notice of the intended transfer. The chief shall deny the
transfer if the chief determines that the transfer will result in
noncompliance with this chapter, rules adopted under it, or the
terms and conditions of a withdrawal and consumptive use permit.
(5) 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 due to the transfer of the facility's
baseline capacity.
(B) No person shall sell or transfer a withdrawal and
consumptive use permit for purposes of evading the requirements
established in sections 1522.10 to 1522.21 of the Revised Code.
Sec. 1522.16. (A)(1) The owner or operator of a facility may
petition the chief of the division of soil and water resources for
either of the following:
(a) Inclusion in the baseline report if the owner or operator
believes that the facility was erroneously excluded from the
report;
(b) 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.
(2) 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.
(3) The chief shall adopt rules in accordance with Chapter
119. of the Revised Code that establish procedures for the
submission of petitions under this division.
(B) With regard to the nonuse of a baseline facility's or a
facility's withdrawal and consumptive use capacity, not later than
sixty days after the time period specified in division (B)(1) or
(2) or (I)(1) or (2) of section 1522.10 of the Revised Code, the
owner or operator of the facility may request an extension from
the chief to retain the facility's active status. The request
shall be made in a manner prescribed by the chief. The chief shall
determine the appropriate terms and conditions of the extension,
if approved, based on information submitted by the owner or
operator. The chief shall issue an order approving or disapproving
the request and shall do so in a manner prescribed by the chief.
Sec. 1522.17. (A) The owner or operator of a facility who is
applying for a withdrawal and consumptive use permit shall submit
to the chief of the division of soil and water resources a
facility water conservation plan that incorporates environmentally
sound and economically feasible water conservation measures in
accordance with Section 4.11.3 of the compact. If the plan
reasonably incorporates environmentally sound and economically
feasible water conservation measures applicable to the facility,
it shall be deemed to be in compliance with Section 4.11.3 of the
compact.
(B) The chief shall keep confidential any portions of a
facility water conservation plan that constitute a trade secret as
defined in section 1333.61 of the Revised Code as follows:
(1) During the period of time after confidentiality is
requested under division (C) of this section and until the chief
makes a determination to approve or disapprove the request;
(2) On and after the date on which the chief approves a
request for confidentiality under division (C) of this section.
Any portions of a facility water conservation plan that are
kept confidential as provided in this division are not subject to
section 149.43 of the Revised Code.
(C)(1) The owner or operator of a facility may request that
any portions of a facility water conservation plan be kept
confidential. The request for confidentiality shall be submitted
at the same time that an owner or operator submits a facility
water conservation plan under division (A) of this section. The
owner or operator shall clearly indicate the information that the
owner or operator considers a trade secret and shall label it as
"trade secret." Failure to make such a request shall constitute a
waiver of the right to prevent public disclosure of the
information. A request for confidentiality shall be accompanied by
documents that support the request. The documents shall describe
the measures that the requestor has taken to safeguard the
confidentiality of the information and indicate whether or not
others are bound by a confidentiality agreement related to the
information.
(2) The chief, by order, shall issue a decision regarding the
confidentiality request not later than forty-five days after the
receipt of the request. Until the decision is issued, the
information that is the subject of the request shall be
confidential and maintained by the chief in a separate file
labeled "confidential." The applicant shall be notified by mail of
the decision.
Sec. 1522.18. The chief of the division of soil and water
resources, on the chief's own initiative or upon written complaint
by any person, may investigate or make inquiries into any alleged
failure to comply with this chapter, any rule adopted under it,
any order issued under it, or the terms and conditions of a permit
issued under it. The chief or the chief's duly authorized
representative may enter at reasonable times on any private or
public property to inspect and investigate conditions relating to
any such alleged act of noncompliance and, if necessary, may apply
to the court of common pleas having jurisdiction for a warrant
permitting the entrance and inspection.
Sec. 1522.19. No person shall violate any provision of this
chapter, any rule or order adopted or issued under it, or any term
or condition of a permit issued under it.
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
permits or orders issued under it. The order shall be effective
upon issuance and 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 the applicable owner or operator of a facility.
Notice also shall be provided to a person who initiated a
complaint that resulted in the order and shall be posted on the
web site of the department of natural resources in a manner
prescribed by the chief.
(B)(1) The chief, by order, may propose to suspend or revoke
a permit issued under this chapter if the chief determines that
any term or condition of the permit is being violated. The chief's
order shall identify the facility where the violation allegedly
occurred, describe the nature of the violation, and prescribe what
action the permittee may take to bring the facility into
compliance with the permit. The chief shall fix and specify in the
order a reasonable date or time by which the permittee must
comply. The order shall state that the chief may suspend or revoke
the permit if the permittee fails to comply with the order by that
date or time. If on that date or time the chief finds that the
permittee has not complied with the order, the chief may issue a
new order suspending or revoking the permit.
(2) The chief or the chief's designee may enter on private or
public lands and take action to mitigate, minimize, remove, or
abate the conditions caused by a violation that is the subject of
an order issued under division (B)(1) of this section.
(C) The attorney general, upon written request of the chief,
shall bring an action for an injunction or other appropriate legal
or equitable action against any person who has violated, is
violating, or is threatening to violate any provision of this
chapter, any rule or order adopted or issued under it, or any term
or condition of a permit issued under it. The attorney general
shall bring the action in the court of common pleas of Franklin
county or the county where the applicable facility is located. In
an action for injunction, any factual findings of the chief
presented at a hearing conducted under division (A) of section
1522.21 of the Revised Code is prima-facie evidence of the facts
regarding the order that is the subject of the hearing.
(D) A person who violates any provision of this chapter, any
rule or order adopted or issued under it, or any term or condition
of a permit issued under it is liable to the chief for any costs
incurred by the division of soil and water resources in
investigating, mitigating, minimizing, removing, or abating the
violation and conditions caused by it. Upon the request of the
chief, the attorney general shall bring a civil action against the
responsible person to recover those costs in the court of common
pleas of Franklin county. Moneys recovered under this division
shall be deposited in the state treasury to the credit of the
water management fund created in section 1501.32 of the Revised
Code.
Sec. 1522.21. (A) As used in this section, "person who is or
will be aggrieved or adversely affected" means a person with a
direct economic or property interest that is or will be adversely
affected by an order or rule issued or adopted by the chief of the
division of soil and water resources under this chapter.
(B)(1) Before issuance of a final order denying the issuance
of a permit under section 1522.11, 1522.12, or 1522.131 of the
Revised Code, denying a transfer under section 1522.15 of the
Revised Code, denying a petition to the chief under section
1522.16 of the Revised Code, or denying a request for
confidentiality under section 1522.17 of the Revised Code, or
before the issuance of a final order under section 1522.20 of the
Revised Code, the chief shall issue a proposed order indicating
the chief's intent to issue a final order. If the chief receives a
written objection from a person who is or will be aggrieved or
adversely affected by the issuance of the final order, the chief
shall conduct an adjudication hearing with respect to the proposed
order in accordance with Chapter 119. of the Revised Code. A
person who is or will be aggrieved or adversely affected by the
issuance of the final order and who submitted a written objection
under this division may be a party to the adjudication.
(2) Any person who is issued a proposed order or a final
order by the chief shall be a party in any administrative or legal
proceeding in which the proposed order or final order is at issue.
This division is in addition to any other rights that a person may
have as a person aggrieved or adversely affected.
(C)(1) After the issuance of a final order, a person who is
or will be aggrieved or adversely affected by the issuance of the
order may appeal the order to the court of common pleas of
Franklin county or the court of common pleas of the county in
which the facility that is the subject of the order is located.
Subject to the exceptions specified in section 2506.03 of the
Revised Code, the court is confined to the record as certified to
it by the chief if an adjudication hearing was conducted by the
chief under division (B) of this section. However, the court also
may grant a request for the admission of additional evidence when
satisfied that the additional evidence is newly discovered and
could not with reasonable diligence have been ascertained prior to
the hearing before the chief. If no adjudication hearing was
conducted under division (B) of this section, the court shall
conduct a hearing de novo.
(2) The filing of an appeal under division (C)(1) of this
section does not automatically suspend the order that is the
subject of the appeal. Upon application by the appellant, the
court may suspend or stay the order, pending an immediate hearing
on the appeal.
(3) If the court finds that the order was lawful and
reasonable, it shall issue a written order affirming the order. If
the court finds that the order was unreasonable or unlawful, it
shall issue a written order vacating or modifying the order. The
judgment of the court is final unless reversed, vacated, or
modified on appeal.
(4) Attorney's fees shall not be awarded to any party to an
administrative or legal proceeding under this section.
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. (A) The Chief of the Division of Soil and Water
Resources in the Department of Natural Resources, not later than
ninety days after the effective date of this section, shall
convene an advisory group consisting of the Chief and all of the
following:
(1) The Chief of the Division of Surface Water in the
Environmental Protection Agency or the Chief's designee;
(2) The following members appointed by the Chief of the
Division of Soil and Water Resources:
(a) A representative of a statewide environmental advocacy
organization;
(b) A water quality expert from the faculty or staff of an
Ohio college or university located within the Lake Erie watershed;
(c) A representative of a sustainable economic development
organization with a primary interest in the Lake Erie watershed.
(3) The following members appointed by the President of the
Senate:
(a) A representative of a statewide business and economic
development organization;
(b) A representative of an independent business located
within the Lake Erie watershed that owns or operates a registered
water withdrawal facility.
(4) The following members appointed by the Speaker of the
House of Representatives:
(a) A representative of agribusiness that operates within the
Lake Erie watershed;
(b) A representative of an independent business located
within the Lake Erie watershed that owns or operates a registered
water withdrawal facility.
(B) The Chief of the Division of Soil and Water Resources
shall serve as chairperson of the advisory group. All appointments
shall be made to the advisory group not later than forty-five days
after the effective date of this section. The advisory group shall
make legislative recommendations for the application of Section
4.11.2 of the Great Lakes-St. Lawrence River Basin Water Resources
Compact. The recommendations shall be designed to ensure that
permits issued under section 1522.12 of the Revised Code, as
enacted by this act, will result in no significant individual or
cumulative adverse impacts to the quantity or quality of the
waters and water dependent natural resources of the Great Lakes
Basin considered as a whole or the Lake Erie watershed considered
as a whole. The recommendations shall not include any change to
divisions (B) and (C) of section 1522.13 of the Revised Code, as
enacted by this act. In developing its recommendations, the
advisory group shall consider the directives in divisions (B) and
(C) of that section and shall consider an adaptive management
approach taking into account scientific and technological advances
in accordance with Sections 1.3 and 1.4 of the Compact.
(C) The advisory group shall meet as necessary to accomplish
its purpose and shall submit its final recommendations to the
Chief of the Division of Soil and Water Resources not later than
eighteen months after the effective date of this section. If the
advisory group does not reach a consensus regarding its
recommendations, the advisory group may submit recommendations
representing each of the minority positions within the advisory
group. Upon submission of its recommendations, the advisory group
shall cease to exist.
(D) The Chief shall make legislative recommendations for
purposes of Section 4.11.2 of the Compact only after full
consideration of the advisory group's recommendations, provided
that the advisory group's recommendations are submitted to the
Chief not later than eighteen months after the effective date of
this section. When making legislative recommendations, the Chief
shall consider the economic consequences of determining whether an
impact is significant.
SECTION 4. The Chief of the Division of Soil and Water
Resources shall add to the list of baseline facilities listed in
the baseline report any facility that commenced a water withdrawal
after December 8, 2009, but not later than one hundred eighty days
after the effective date of this section.
SECTION 5. The Chief of the Division of Soil and Water
Resources in the Department of Natural Resources shall not adopt
rules governing the application of Section 4.11.2 of the Great
Lakes-St. Lawrence River Basin Water Resources Compact until the
Chief is authorized to do so by the General Assembly.
SECTION 6. If a court of competent jurisdiction holds any
part of this act to be void or unenforceable, it shall be
considered severable from those portions of the act that are
capable of continued implementation in the absence of the voided
provisions. All other provisions capable of continued
implementation shall continue in full force and effect. In
addition, if a court of competent jurisdiction holds all or part
of this act to be void or unenforceable such that the Chief of the
Division of Soil and Water Resources in the Department of Natural
Resources is prohibited from implementing the withdrawal and
consumptive use permit program under section 1522.12 of the
Revised Code, as enacted by this act, the owner or operator of a
facility that otherwise would have been required to obtain a
permit under that section instead shall proceed to obtain a permit
under section 1501.33 of the Revised Code, as amended by this act.
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