Surface Water Rules Review of Key Water Quality Issues and Draft Rule Changes.
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Transcript of Surface Water Rules Review of Key Water Quality Issues and Draft Rule Changes.
Surface Water Rules
Review of Key Water Quality Issues and Draft Rule Changes
10/17/08 Ohio Chamber of Commerce 2
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
10/17/08 Ohio Chamber of Commerce 3
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
10/17/08 Ohio Chamber of Commerce 4
Rule Making Steps
• External consultation & review• Agency rule drafting• Interested party review & comment
– On all 4 packages now through spring 2009 ??
• Proposed rules & comment– Legislative review (JCARR)
• Final rules (venue for legal appeal) 2009• U.S. EPA approval• Implementation
10/17/08 Ohio Chamber of Commerce 5
Topics
• What are today’s water quality problems? – What rules changes are designed to solve
them?
• Small streams - what and why
• “Routine triennial review” issues– Human health criteria, etc.
10/17/08 Ohio Chamber of Commerce 6
Leading Impacts on Water Quality
• Poor stream habitat
• Nutrient enrichment
• Where are impacts evident?– Agricultural watersheds– Development projects &
mining– Wastewater treatment
305b & 303d reports
10/17/08 Ohio Chamber of Commerce 7
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
10/17/08 Ohio Chamber of Commerce 8
Partnerships SWCDs County Engineers Watershed groups
Re-focused Direction
ImplementationToolbox of solutions to fix water quality problems
10/17/08 Ohio Chamber of Commerce 9
Prior Consultation
Rural Drainage Advisory Committee
1.Evaluate Ohio’s 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
10/17/08 Ohio Chamber of Commerce 10
CLASS I CLASS II CLASS III WWH or EWH WWH or EWH WWH or EWH WWH or EWH
Uplands
Transitional
Lowlands
Chemical Emphasis – to protect downstream
Biological Emphasisis appropriate
Common Ground Model
80 % of Ditch work
Must improve ditchpractices
Experience of Rural Drainage Committee
10/17/08 Ohio Chamber of Commerce 11
Basis in Draft WQS Rules
Implemented in OhioRural Drainage Manual
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Right Track
Toolbox to: Reduce nutrientsIncrease assimilative capacityManage habitatImprove biological stream health
Beneficial UseFramework
Nutrient Criteriafor lakes, streams
Draft Rule Elements
Allen County support for toolbox
10/17/08 Ohio Chamber of Commerce 13
Agricultural Issues
• Why is there a Base Aquatic Life use?
• What’s does the Drainage use do?
• How will ditch projects be impacted?
• What will happen with nutrient TMDLs?
10/17/08 Ohio Chamber of Commerce 14
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 habitatand nutrient inputs
Upland DrainageNo biological criteria!
Create technical information and cash incentives for systems that process nutrient loadings (e.g., (wetlands, overwide ditches, etc.)
10/17/08 Ohio Chamber of Commerce 15
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
10/17/08 Ohio Chamber of Commerce 16
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
10/17/08 Ohio Chamber of Commerce 17
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
10/17/08 Ohio Chamber of Commerce 18
WQS Package
401 Package
Stream Mitigation Protocol Package
AntidegradationPackage
Primary HeadwaterDrainage Uses
Small streams
Each Package Contributes --
Regulate isolated streams
Loss of use
10/17/08 Ohio Chamber of Commerce 19
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
10/17/08 Ohio Chamber of Commerce 20
The loss of use question
• “Tier I” of Antidegradation Rule– No loss of an existing use allowed
• For wetlands that’s “no net loss”
• For streams it’s interpreted to apply to an individual stream or stream segment
10/17/08 Ohio Chamber of Commerce 21
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
10/17/08 Ohio Chamber of Commerce 22
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
10/17/08 Ohio Chamber of Commerce 23
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
10/17/08 Ohio Chamber of Commerce 2410/17/08 24
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
10/17/08 Ohio Chamber of Commerce 25
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
10/17/08 25
10/17/08 Ohio Chamber of Commerce 26
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
10/17/08 26
10/17/08 Ohio Chamber of Commerce 27
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?”
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10/17/08 Ohio Chamber of Commerce 28
Stream Mitigation Workgroup
• Provide more guidance on stormwater BMPs
• Provide more guidance on natural channel design
• Simplify the documentation
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10/17/08 Ohio Chamber of Commerce 29
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
10/17/08 Ohio Chamber of Commerce 30
WQS Package
401 Package
Stream Mitigation Protocol Package
AntidegradationPackage
Primary HeadwaterDrainage Uses
Small streams
Each Package Contributes --
Regulate isolated streams
Loss of use
10/17/08 Ohio Chamber of Commerce 31
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
10/17/08 Ohio Chamber of Commerce 32
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
10/17/08 Ohio Chamber of Commerce 33
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
10/17/08 Ohio Chamber of Commerce 34
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
10/17/08 Ohio Chamber of Commerce 35
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
Questionshttp://www.epa.state.oh.us/dsw/index.html
Dan Dudley
614.644.2876
10/17/08 Ohio Chamber of Commerce 37
Administrative Changes in 401
• Provision to issue a waiver of certification
• Consideration of applicant’s 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