On August 15, 2008 the Ohio Environmental Protection Agency (Ohio EPA) circulated a draft rulemaking package under Ohio Administrative Code (OAC) Chapter 3745-1 containing significant revisions to Ohio's water quality standards regulations. This set of draft rules is the first of four packages Ohio EPA will release for comment this fall. A second rulemaking package, which addresses Section 401 certification rules, was released only last week and will be the subject of a separate alert.
According to the agency, these four packages will reflect the most extensive revisions to Ohio's surface water quality rules in approximately 30 years. Ohio EPA describes the primary impetus for these revisions as a programmatic shift to focus on both point-source pollution and non-point-source pollution. Some changes are meant to update Ohio's regulations to reflect revisions in federal water quality regulations. Other changes, particularly those related to wetlands, respond to recent US Supreme Court decisions creating a regulatory gap between waters under federal jurisdiction and those subject to regulation only by the states.
Each of the four packages addresses a separate water quality topic. The topics covered, along with their respective release dates, are the following:
- Water Quality Standards (August 15, 2008)
- Antidegradation (September 2008)
- Section 401 Water Quality Certifications (September 12, 2008)
- Stream Mitigation Protocol (November 2008)
Thus far, the changes Ohio EPA proposes are significant and numerous. Of note, the first rules package adds certain beneficial use designations to which water quality criteria will apply including a formal aquatic use designation for "unlisted" (i.e., unmapped) waters and the addition of a Primary Headwater Habitat designation. Water use designations and statewide criteria were added, revised or reorganized under new sections of OAC 3745-1. The revisions also:
- Update methodologies to be used for deriving human health criteria and values under OAC 3745-1-38;
- Identify use designations for the Ohio River (applying more stringent standards) under OAC 3745-1-32;
- Lower the applicable "drinking" criteria for waters designated for water supply use under OAC 3745-1-40;
- Update or add criteria regarding seven specific chemicals including cadmium, lead and chloride;
- Add a rule governing the application of the biological and chemical criteria for the tiered life use designations; and
- Move the provisions under OAC 3745-1-07 to other sections of 3745-1.
Among the more significant changes that Ohio EPA proposes is the addition of several new beneficial use designations: Lake Habitat, Upland Drainage, Water Conveyance, Navigation, Base Aquatic Life and Primary Headwater Habitat.
The addition of a Base Aquatic Life use designation under OAC 3745-1-07 is significant in that it provides a formal aquatic life use designation to unlisted waters, or those waters supporting fish and other aquatic species that are not named on maps. The old warmwater habitat numeric criteria would apply to this use, but not the biological criteria.
Another significant addition is the aquatic use designation for Primary Headwater Habitat, which Ohio EPA proposes adding to emphasize the cumulative importance of headwaters. Within the Primary Headwater Habitat designation, there would be three classes of headwaters: Class I (essentially "dry"), Class II (intermittent) and Class III (coldwater). For Class I and II headwaters, the same baseline requirements for Base Aquatic Life waters would apply. For Class III headwaters, however, those water quality standards applicable to Coldwater Habitats would apply. Streams will be assigned to a class on a case-by-case basis at the time a permit application is made. Applicable stream mitigation requirements will not be known until the fourth rulemaking package is released.
Water Quality Criteria
Ohio EPA proposes revisions to the specific water quality criteria and standards for certain beneficial use designations. For example, under proposed rules regarding the Ohio River, the regulations require application of the water quality criteria for the specific use designations identified for the Ohio River or the Ohio River Valley Water Sanitation Commission (ORSANCO) standards established in 2006, whichever is more stringent. Ohio EPA proposes to add new rules containing water quality criteria for beneficial use designations, such as the Base Aquatic Life water criteria under new rule OAC 3745-1-42. The Base Aquatic Life criteria would contain updated or new criteria for cadmium, chloride, chlorpyrifos, diazinon, lead, nonylphenol and tributyltin.
More significantly, revisions would also update the criteria for water supply use designations under OAC 3745-1-40 by adopting federal maximum contaminant levels (MCLs) for many parameters and providing that additional criteria may be developed using the methodology specified in 3745-1-38 (see below) or an "alternative methodology" acceptable under 40 CFR § 131.
Water Quality Criteria Development Methodology
The first rulemaking package contains changes in the methodology by which certain water quality criteria are developed. For example, the rules governing the development of human health criteria and values (OAC 3745-1-38), formerly applicable only to the Lake Erie drainage basin, would apply statewide and would be revised to require the use of US EPA's "Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000)." The existing Lake Erie methodologies, however, would remain applicable in that basin when they would result in more restrictive criteria.
Other changes would include the addition of key definitions under OAC 3745-1-01, such as one for "existing use," which would mean "a beneficial use actually attained in the water body on or after November 28, 1975 regardless of the beneficial uses designated for the water body in this chapter." Definitions are also proposed for "cold water fauna," "lake" and "stream." The "free-from" provisions under OAC 3745-1-04 would be revised to lower the level of E. coli constituting a public nuisance from 5,000 counts/100 ml to 1,030 counts.
This first set of Ohio EPA's revisions to the water quality standards can be reviewed on Ohio EPA's website. Ohio EPA is seeking comments from interested parties, in particular those comments related to the costs that would be associated with complying with these proposed revisions. Ohio EPA originally specified that comments on these rules should be submitted by September 30, 2008, but the agency has recently extended that deadline to October 30, 2008.