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Surface Water Rules Review of Key Water Quality Issues and Draft Rule Changes.

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Presentation on theme: "Surface Water Rules Review of Key Water Quality Issues and Draft Rule Changes."— Presentation transcript:

1 Surface Water Rules Review of Key Water Quality Issues and Draft Rule Changes

2 10/17/08Ohio Chamber of Commerce2 Surface Water Rule Packages OAC Chapter 3745-1 –Water Quality Standards (WQS), 18 rules Released August 15 –Antidegradation, 1 rule, 3745-1-05 Released October 15 –Stream Mitigation Protocol (TDB) To be released in January OAC Chapter 3745-32 –Basic 401 Program (water quality certification) Released September 12

3 10/17/08Ohio Chamber of Commerce3 Why Do a Rule Review? Required by U.S. EPA and Ohio General Assembly Incorporate experience and new science to: – protect water quality – improve permitting efficiency Principles in Executive Order 2008-04S

4 10/17/08Ohio Chamber of Commerce4 Rule Making Steps External consultation & review Agency rule drafting Interested party review & comment –On all 4 packagesnow through spring 2009 ?? Proposed rules & comment –Legislative review (JCARR) Final rules (venue for legal appeal)2009 U.S. EPA approval Implementation

5 10/17/08Ohio Chamber of Commerce5 Topics What are todays water quality problems? –What rules changes are designed to solve them? Small streams - what and why Routine triennial review issues –Human health criteria, etc.

6 10/17/08Ohio Chamber of Commerce6 Leading Impacts on Water Quality Poor stream habitat Nutrient enrichment Where are impacts evident? –Agricultural watersheds –Development projects & mining –Wastewater treatment 305b & 303d reports

7 10/17/08Ohio Chamber of Commerce7 Drainage Issues in Allen County Dug Run –1999 re-write of ORC 6111.12 Little Cranberry Cr. –2006 policy resolutions passes by Ohio Federation SWCDs

8 10/17/08Ohio Chamber of Commerce8 Partnerships SWCDs County Engineers Watershed groups Re-focused Direction Implementation Toolbox of solutions to fix water quality problems

9 10/17/08Ohio Chamber of Commerce9 Prior Consultation Rural Drainage Advisory Committee 1. Evaluate Ohios Rural Drainage System. 2. Update Standards for Drainage Work. 3. Determine Applicability of Water Quality Laws to Drainage Projects. 4. Identify Solutions to Drainage Challenges. Constructive Dialogue

10 10/17/08Ohio Chamber of Commerce10 CLASS I CLASS II CLASS III WWH or EWH Uplands Transitional Lowlands Chemical Emphasis – to protect downstream Biological Emphasis is appropriate Common Ground Model 80 % of Ditch work Must improve ditch practices Experience of Rural Drainage Committee

11 10/17/08Ohio Chamber of Commerce11 Basis in Draft WQS Rules Implemented in Ohio Rural Drainage Manual

12 10/17/08Ohio Chamber of Commerce12 Right Track Toolbox to: Reduce nutrients Increase assimilative capacity Manage habitat Improve biological stream health Beneficial Use Framework Nutrient Criteria for lakes, streams Draft Rule Elements Allen County support for toolbox

13 10/17/08Ohio Chamber of Commerce13 Agricultural Issues Why is there a Base Aquatic Life use? Whats does the Drainage use do? How will ditch projects be impacted? What will happen with nutrient TMDLs?

14 10/17/08Ohio Chamber of Commerce14 Common Ground Model Table 3 in Jan. 2008 report - Restore drainage function plus build in other services such as in-channel nutrient processing 3 Aquatic Life Uses (with biological criteria) Immediate management of habitat and nutrient inputs Upland Drainage No biological criteria! Create technical information and cash incentives for systems that process nutrient loadings (e.g., (wetlands, overwide ditches, etc.)

15 10/17/08Ohio Chamber of Commerce15 Development & Mining Projects Our Objectives: –Retain the practice of protecting headwater streams –Achieve parity on loss of use (wetlands vs. streams) –Establish a predictable and efficient process for stream mitigation

16 10/17/08Ohio Chamber of Commerce16 Why address small streams? Protection is critical to health of downstream waters –Biological health –Export of water, sediment and nutrients Cumulative impacts are often irretrievable

17 10/17/08Ohio Chamber of Commerce17 A legal reason too ORC 6111.04 – Acts of pollution prohibited –Permit needed to place fill in surface waters Isolated wetland permit –Legislation in 2001 Isolated or primary headwater streams – Administrative rules drafted in 2008 Development projects impact headwaters –Better toolbox needed

18 10/17/08Ohio Chamber of Commerce18 WQS Package 401 Package Stream Mitigation Protocol Package Antidegradation Package Primary Headwater Drainage Uses Small streams Each Package Contributes -- Regulate isolated streams Loss of use

19 10/17/08Ohio Chamber of Commerce19 401 Rule Package State WQ Permit applies when Corps takes jurisdiction and for non federally regulated waters –A.k.a., isolated streams or headwaters Other procedural changes Plan to Issue General State Wide WQ Permit

20 10/17/08Ohio Chamber of Commerce20 The loss of use question Tier I of Antidegradation Rule –No loss of an existing use allowed For wetlands thats no net loss For streams its interpreted to apply to an individual stream or stream segment

21 10/17/08Ohio Chamber of Commerce21 Antidegradation Rule Package Definitions added: –existing use, loss of use, local and regional drainage patterns Parity regarding loss of use for streams vs. wetlands –No net loss of wetlands –No net loss of headwater function

22 10/17/08Ohio Chamber of Commerce22 WQS Package Definition for Stream Primary Headwater Habitat –< 1 square mile no biological criteria –Chemical criteria from Base Aquatic Life Use Methodology to assign a Class referenced in rule –Class I – ephemeral (dry) channels –Class II – intermittent or permanent water, warmwater traits –Class III – permanent water, coldwater traits

23 10/17/08Ohio Chamber of Commerce23 Approach to Stream Mitigation Objective: Sound and predictable methodology to: –Assess impacts –Develop compensatory mitigation Based on a method from Savannah District of the Corps Ohio-ized to reflect our WQS

24 10/17/08Ohio Chamber of Commerce2410/17/0824 Existing Procedures No specific language in Ohio Administrative Code (OAC) on Stream Mitigation Basis is in the Antidegradation Rule (OAC 3745-1-05) Determination of appropriate mitigation is done on a case by case basis Can be difficult and time consuming

25 10/17/08Ohio Chamber of Commerce25 Proposed Procedures Provides a more structured review process for stream mitigation proposals Identifies the factors that Ohio EPA will be looking at to assess both the impact of a proposed project and the proposed mitigation for those impacts Should provide more predictability and a corresponding time savings in the application process 10/17/0825

26 10/17/08Ohio Chamber of Commerce26 Stream Mitigation Rules Sent out for Interested Party Review on February 14, 2006 Comment period ended on May 17, 2006. Comments from over 150 individuals and organizations were received. Stream mitigation proposal has completed a year long interested party workgroup review 10/17/0826

27 10/17/08Ohio Chamber of Commerce27 Stream Mitigation Workgroup Explaining the process Did we say what we thought we said? Is there a better way to accomplish our goal? Are there Show Stoppers? 10/17/0827

28 10/17/08Ohio Chamber of Commerce28 Stream Mitigation Workgroup Provide more guidance on stormwater BMPs Provide more guidance on natural channel design Simplify the documentation 10/17/0828

29 10/17/08Ohio Chamber of Commerce29 Stream Mitigation Rule Package Stream Mitigation Protocol included in rule by reference –Similar in concept to ORAM methods and wetland mitigation protocols –Existing classification methods used for larger streams EWH, WWH, MWH, etc. –The new Primary Headwater use and the process to classify them for small waters Added off ramps for projects on lower quality stream systems

30 10/17/08Ohio Chamber of Commerce30 WQS Package 401 Package Stream Mitigation Protocol Package Antidegradation Package Primary Headwater Drainage Uses Small streams Each Package Contributes -- Regulate isolated streams Loss of use

31 10/17/08Ohio Chamber of Commerce31 Triennial WQS Review issues U.S. EPA requirement to review and update water quality criteria –Nutrient criteria for inland lakes added Stream nutrient criteria to follow in 2009 –E. coli established as sole bacteria indicator –Seven aquatic life criteria updated –All human health criteria updated

32 10/17/08Ohio Chamber of Commerce32 Draft Changes Water Quality Criteria Generally more stringent chemical criteria for –Human health criteria, 135 chemicals reviewed Only GLI required values kept in rule Other chemicals regulated by citing the U.S. EPA criteria calculation methodology published in 2000 Arsenic –Aquatic life criteria, 7 chemicals Cadmium Chloride Need to review new toxicity test information

33 10/17/08Ohio Chamber of Commerce33 Impacts on Permit Holders? NPDES permits & pretreatment –Monitoring or lower limits for Cd, As possible –E. coli limits to replace fecal coliform, but no changes regarding disinfection practices –Phase-in of biological nutrient removal Part of Antideg rule Rules do not affect storm water permits for MS4 communities or construction sites

34 10/17/08Ohio Chamber of Commerce34 Land Development More predictable process to obtain permits to re-locate stream –Less time and cost for Class I and II headwaters –Similar time and cost for Class III headwaters and larger streams

35 10/17/08Ohio Chamber of Commerce35 Desired Outcome Protect human health, aquatic life and essential habitat –Safe exposure to chemicals –Prevent cumulative nutrient and habitat impacts with a reasonable scale of allowable impacts and mitigation Fair and consistent protocol to: – gauge when loss of stream use occurs – evaluate impacts and install mitigation Reduce permit review time with predictable outcomes

36 Questions Dan Dudley 614.644.2876

37 10/17/08Ohio Chamber of Commerce37 Administrative Changes in 401 Provision to issue a waiver of certification Consideration of applicants compliance status on prior projects when reviewing a new project from same applicant Unilateral authority for clock stoppage against 180 day time frame for permit issuance

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