Surface Water Rules

Review of Key Water Quality Issues and Draft Rule Changes

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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

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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

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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

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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.

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Leading Impacts on Water Quality

• Poor stream habitat

• Nutrient enrichment

• Where are impacts evident?– Agricultural watersheds– Development projects &

mining– Wastewater treatment

305b & 303d reports

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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

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Partnerships SWCDs County Engineers Watershed groups

Re-focused Direction

ImplementationToolbox of solutions to fix water quality problems

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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

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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

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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

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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?

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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.)

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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

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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

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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

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WQS Package

401 Package

Stream Mitigation Protocol Package

AntidegradationPackage

Primary HeadwaterDrainage Uses

Small streams

Each Package Contributes --

Regulate isolated streams

Loss of use

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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

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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

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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

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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

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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

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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

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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

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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

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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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Stream Mitigation Workgroup

• Provide more guidance on stormwater BMPs

• Provide more guidance on natural channel design

• Simplify the documentation

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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

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WQS Package

401 Package

Stream Mitigation Protocol Package

AntidegradationPackage

Primary HeadwaterDrainage Uses

Small streams

Each Package Contributes --

Regulate isolated streams

Loss of use

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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

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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

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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

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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

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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

dan.dudley@epa.state.oh.us

614.644.2876

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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