The Ohio Environmental Protection Agency (Ohio EPA) is currently circulating for interested party review the second and third parts of a four-part rulemaking package to revise its surface water rules. These four parts will, if adopted, be the most extensive revisions to Ohio's surface water quality rules in 30 years. The topics covered, along with each part's respective circulation dates, are as follows:

  • Water Quality Standards (August 15, 2008)
  • Antidegradation (September 12, 2008)
  • Section 401 Water Quality Certifications (October 15, 2008)
  • Stream Mitigation Protocol (early 2009)  

The second and third parts contain significant revisions to Ohio EPA's regulations associated with state water quality (Section 401) certifications and Ohio's antidegradation rule. In particular, Ohio EPA proposes to expand the scope of Section 401 certifications to include isolated waters that would otherwise not be subject to a federal permit under §404 of the Clean Water Act or §10 of the Rivers and Harbors Act. The antidegradation rule would be revised to include nitrogen and phosphorus effluents limits, to clarify certain exemptions and concepts, and to update tables identifying high quality waters in Ohio.

Section 401 Water Quality Certifications

Ohio EPA's stated intention in revising Ohio's Section 401 certification rules under Ohio Administrative Code (OAC) Chapter 3745-32 is to expand the scope of the state certification program to include waters that do not constitute "waters of the United States," the meaning of which was limited by the US Supreme Court in United States v. Rapanos. As currently written, the Section 401 certification rules govern only activities involving a pending federal permit, as authorized under Section 401 of the federal Clean Water Act. The certifications' scope would be expanded to govern other activities falling outside federal jurisdiction and the regulatory gaps created by Rapanos. Signifying this shift, the permits authorized under this chapter would now be called "state water quality permits," instead of "Section 401 water quality certifications."

The new state water quality permit would govern more activities than the current Section 401 certification. For example, the exemptions in OAC 3745-32-02 will no longer cover activities authorized under a US Army Corps general permit. Instead, Ohio EPA may approve, deny or waive a state water quality permit for such activities. In addition, Ohio EPA may impose terms and conditions in a state water quality permit in addition to those conditions under a general permit. Also, the state water quality permit process would utilize an application process independent from the §404 or §10 federal process.

Significant changes and additions are being proposed to the chapter's definitions. For example, the definition of "fill material" under the chapter would be revised to include "any pollutant material used to fill an aquatic area to replace an aquatic area with dry land or to change the bottom elevation of a water body for any purpose, and that consists of suitable material that is free from toxic contaminants in other than trace quantities." Ohio EPA does not, however, explain how "trace quantities" will be defined.

Antidegradation Rule

The antidegradation rule under OAC 3745-1-05 prohibits a lowering of water quality unless justified by important social and economic reasons to protect a water body's existing uses. The proposed revisions would incorporate a number of changes to the antidegradation regulatory scheme.

Most notably, changes to the definition of "best available demonstrated control technology" would add design criteria and effluent limits under the rule for nitrogen and phosphorus. The design criteria would apply to biological treatment processes at new and modified existing sanitary wastewater treatment plants with a design average daily flow of 0.5 million gallons per day. But projects exclusively designed to address wet weather flows would not trigger the design criteria if they are part of an approved combined-sewer overflow long term control plan. The nitrogen and phosphorus effluent limitations based on the design criteria would be required when all biological treatment processes at a plant are being installed or rebuilt, as opposed to only a portion of the plant. Other revised definitions are proposed as well.

In addition to revising definitions, Ohio EPA proposes to add additional language under OAC 3745-1-05(C) to provide what it calls a "unifying framework" for assessing the loss of a beneficial use of a water body. The revisions would outline procedures for assessing impacts on streams and wetlands including a "no net loss" standard protecting wetland use. The proposed regulations also would seek to clarify the process by which Ohio EPA reviews a request to revise the in-rule set-aside established for outstanding state water or superior high quality water.

Exemptions under OAC 3745-1-05 would be revised to make some or all of the antidegradation regulations inapplicable to certain activities including certain "net increases" in a regulated pollutant from an existing source and the social and economic justifications currently required for Section 401 water quality certifications. Finally, Ohio EPA seeks to update the tables identifying special high quality waters.

Comments Sought

Copies of these revisions can be reviewed on Ohio EPA's website. Ohio EPA is seeking comments from interested parties, but has indicated that because the four component parts of this rulemaking are interrelated, the comment deadline for all four has been extended to 60 days after the fourth and final part is circulated for interested party review. The fourth and final part, addressing stream mitigation protocol, is expected to be issued in early 2009.