Chapter 1501-2 Water Diversion

1501-2-01 Applicability.

No person shall divert more than one hundred thousand gallons per day of any waters of the state out of the lake Erie or Ohio river drainage basin without being issued a permit by the director of natural resources in accordance with section 1501.32 of the Revised Code and rules issued pursuant to that section.

R.C. 119.032 review dates: 01/04/2006 and 01/04/2011

Promulgated Under: 119.03

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/1985, 11/28/1990, 11/28/1995, 11/28/2000

1501-2-02 Definitions.

For purposes of rules 1501-2-01 to 1501-2-12 of the Administrative Code:

(A) "Director" means the director of the department of natural resources.

(B) "Department" means the department of natural resources.

(C) "Applicant" means a person making application for a water diversion permit.

(D) "Application" means an application for the water diversion permit required by section 1501.32 of the Revised Code and rules adopted pursuant to that section.

(E) "One hundred thousand gallons per day" means an average of one hundred thousand gallons per day for any consecutive thirty day period.

(F) "Diversion" means a withdrawal of waters of this state from either the lake Erie or Ohio river drainage basin and transfer to another basin without return. Diversion does not include evaporative loss within the basin of withdrawal.

(G) "Withdrawal" means the removal or taking of any waters of the state of Ohio.

(H) "Lake Erie drainage basin" means the lands and waters located within the state of Ohio that constitute part of the watershed of lake Erie.

(I) "Ohio river drainage basin" means the lands and waters located within the state of Ohio that constitute part of the watershed of the Ohio river.

(J) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, or other legal entity, or any political subdivision, instrumentality, or agency of this state or the United States.

(K) "Waters of the state" means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state or are within its jurisdiction.

(L) "Completed application" means an application for a water diversion permit, required by section 1501.32 of the Revised Code and rules adopted pursuant to that section, which has been reviewed and determined by the director not to be defective according to rule 1501-2-05 of the Administrative Code.

R.C. 119.032 review dates: 01/04/2006 and 01/04/2011

Promulgated Under: 119.03

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.30

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-03 Severability.

The invalidation by a court of a rule adopted or amended pursuant to sections 1501.30 to 1501.35 of the Revised Code shall not affect the validity of any other rule or portion thereof adopted or amended thereunder by the director.

R.C. 119.032 review dates: 01/04/2006 and 01/04/2011

Promulgated Under: 119.03

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.30 , 1501.31 , 1501.32 , 1501.33 , 1501.34 , 1501.35

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-04 Lake erie and ohio river drainage basin.

The chief of the division of water in the department of natural resources shall establish and maintain a map file of the boundaries of the lake Erie and Ohio river drainage basins in this state. The map file shall be available for public inspection at the division's offices in Columbus. The chief shall develop a generalized map illustrating the drainage basins for lake Erie and the Ohio river in this state. Copies of the generalized map shall be available upon request.

R.C. 119.032 review dates: 08/18/2005 and 08/18/2010

Promulgated Under: 119.03

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.30

Prior Effective Dates: 11/28/1985

1501-2-05 Water diversion permit applications.

(A) Any application that fails to provide the director with prescribed information needed for ascertaining compliance with the applicable provisions of section 1501.32 of the Revised Code, or rules promulgated thereunder, shall be considered defective. Upon determining that an application is defective, the director shall so notify the applicant and either request additional information or return the application to the applicant without further processing. An indication of the deficiency shall accompany a returned application and the applicant shall have ninety days from the receipt thereof in which to cure the defect. Upon determining that an application is not defective, the director shall notify the applicant that the application has been accepted as complete and is being considered.

(B) An application shall contain the following information and shall be filed on forms provided by the director:

(1) The name, address, and telephone number of applicant.

(2) The location of the proposed withdrawal; a description of all proposed and existing systems for the storage, treatment, transportation, and distribution of water; and the location to which the waters of the state are proposed to be diverted; the location of any discharge of water or wastewater effluent within the area to which the applicant intends to supply water from the diversion; and the geographic area to which the applicant intends to supply water and the population within that area.

(3) The average quantity of water in gallons to be diverted daily and a description of the uses to which the water is to be put, including the proportion allocated to each use.

(4) A description of all present sources of water supply available to the applicant in the basin to which the water would be diverted; an analysis of applicant's present and future needs; and a description of efforts to develop and conserve water resources in the importing basin.

(5) The expected life of the diversion project.

(6) Maps showing the items listed in paragraph (B)(2) of this rule; the county and township roads; the location of utilities; the topography; and any structures of facilities affected by or part of the proposed diversion. Maps published by the state, county, and the United States geological survey, and aerial photographs, may be used for these purposes.

(7) Diversion design specifications and site plans accurately drawn and in sufficient detail to clearly indicate the extent and complexity of the proposed diversion.

(8) An analysis of anticipated effects on uses of lands and waters within the lake Erie or Ohio river drainage basin resulting from the diversion. The analysis shall include an assessment of short-term and long-term impacts on natural, historic, community, economic and scenic resources, in-stream uses, and economic and ecologic aspects of water levels that will be affected by the proposed diversion project. The assessment shall include the identification of all known or anticipated competing uses for the diverted water.

(9) An analysis of needs and requirements of land acquisition, land use requirements, relocation or resiting of existing facilities, rights of way, structures, and all equipment, including energy needs of the equipment, and total costs, direct and indirect, to effect the diversion.

(10) An analysis of whether the diversion is consistent with plans and requirements of the state for the use, management, and protection of the water resources of this state.

(11) An analysis of the impact of the proposed diversion on the levels and flows in both the basin to which water would be diverted and the basin from which the water would be withdrawn over the expected life of the diversion, including low flows, flood levels, and where appropriate, the levels of lake Erie or the Ohio river.

(12) An analysis of the impact of the proposed diversion on water quality in both the basin to which water would be diverted and the basin from which the water would be withdrawn over the expected life of the diversion.

(13) Projections of water use needs for the life of the diversion in the basin to which the water would be diverted and the basin from which the water would be withdrawn, and an analysis of the potential impact of the proposed diversion on water supply in each such basin over the life of the project.

(14) An analysis of alternatives, for meeting the present and future water needs of the applicant, including the economic, social, and environmental impacts of further development of the water resources in the importing basin.

(15) Such additional information as the director may require.

(C) An application for a diversion which lawfully diverted more than one hundred thousand gallons per day of any waters of this state within one year before October 12, 1984 shall contain the following information and shall be filed on forms provided by the director:

(1) The name, address, and telephone number of applicant.

(2) The location of the withdrawal; a description of all proposed and existing systems for the storage, treatment, transportation, and distribution of water; and the location to which the waters of the state are proposed to be diverted; the location of any discharge of water or wastewater effluent within the area to which the applicant intends to supply water from the diversion; and the geographic area to which the applicant intends to supply water and the population within that area.

(3) The average quantity of water, in gallons, diverted daily and a description of the uses to which the water is put, including the proportion of the diversion which goes to each use.

(4) Maps in sufficient detail to show the items listed in paragraph (C)(2) of this rule; the county, township, and section lines; the locations of state, county, and township roads; the locations of utilities; the topography; and any other structures or facilities affected by or part of the proposed water diversion. Maps published by the state, the county, or the United States geological survey, the aerial photographs, may be used for these purposes.

(5) The expected life of the diversion project.

(6) Such additional information as the director may require.

(D) The application required under paragraph (B) of this rule shall be accompanied by a nonrefundable fee of one thousand dollars.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/1985, 11/28/1990, 11/28/1995, 11/28/2000

1501-2-06 Criteria for permit review.

(A) No application for a water diversion permit shall be granted if the director determines any of the following to be true:

(1) During the expected life of the diversion, some or all of the water to be diverted will be needed for use within the basin.

(2) The proposed diversion will endanger the public health, safety and welfare.

(3) The applicant has not demonstrated that the proposed diversion is a reasonable and beneficial use and is necessary to serve the applicant's present and future needs;

(4) The applicant has not demonstrated that reasonable efforts have been made to develop and conserve water resources in the importing basin and that further development of those resources would engender overriding, adverse economic, social, or environmental impacts;

(5) The proposed diversion is inconsistent with regional or state water resources plans;

(6) The proposed diversion, alone or in combination with other diversions and water losses, will have a significant adverse impact on in-stream uses or on economic or ecologic aspects of water levels.

(B) If at any time the director discovers material discrepancies in an application due to invalid or untrue information, he may suspend, revoke or deny any permit issued under it.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-07 Timetables for action on water diversion permit applications.

(A) If the application is for a diversion which is not subject to the provisions of section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230 42 U.S.C. 1962D-20 , the director shall issue or deny the water diversion permit within ninety days of accepting the completed application in accordance with the provisions set forth in rule 1501-2-06 of the Administrative Code, unless the director determines that the complexity of the issues requires further consideration. In that event, the director shall notify the applicant in writing of the need for an extension and of the reason therefor.

(B) If the application is for a diversion which is subject to the provisions of section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230 42 U.S.C. 1962D-20 , the director shall do one of the following:

(1) Deny the water diversion permit within ninety days of accepting the completed application in accordance with the provisions set forth in rule 1501-2-06 of the Administrative Code, without sending the application to the Great Lakes states' governors for their consideration pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962D-20 , unless the director determines that the complexity of the issues requires further consideration. In that event, the director shall notify the applicant in writing of the need for an extension and of the reason therefor.

(2) Deny the water diversion permit within ninety days of receiving notification of denial of the diversion proposal from any of the Great Lakes states' governors pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962D-20 .

(3) Approve the water diversion permit within ninety days of receiving notification of approval of the completed application from all the Great Lakes' states governors pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962D-20 , and in accordance with the provisions set forth in rule 1501-2-06 of the Administrative Code.

(C) No construction on the water diversion project shall be performed until the permit is issued by the director.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-08 Transfer of permits.

(A) Any person intending to transfer a water diversion permit shall notify the director, in writing, at least sixty days prior to transfer.

(B) No water diversion permits shall be transferred unless the transfer is approved by the director in writing.

(C) The director shall not approve the transfer of a water diversion permit unless he determines that:

(1) The transferor is presently in compliance with section 1501.32 of the Revised Code, rules promulgated thereunder, and the terms and conditions of its permit.

(2) The transferee assumes all responsibilities and obligations of the transferor regarding the diversion permit.

(3) In the case of a transferee who has previously held or currently holds a permit, that such transferee has previously operated or presently operates the diversion in compliance with section 1501.32 of the Revised Code, rules promulgated thereunder, and the terms and conditions of its permit.

(4) The transfer does not allow for any increase in the quantity or any change in the location or purpose of the diversion.

(5) The transfer does not alter or jeopardize compliance with any terms or condition of the permit or with any obligations assumed thereunder.

(6) The transferred permit expires on the date of the original permit.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-09 Reporting requirements.

Within sixty days after the end of each calendar year, all permittees shall furnish the director with the following information, and such other information as the director may require, on forms provided by him:

(A) The total amount of water diverted during that calendar year.

(B) The average daily and monthly volume of water diverted during that calendar year.

(C) The percentage of diverted water distributed through metered and unmetered services.

(D) The amount and percentage of diverted water used during the calendar year for each purpose listed on the application for the permit.

(E) The amount of water transferred, sold or otherwise provided from the diversion to any other named distribution system during the calendar year.

(F) Failure to comply with the reporting requirements shall be considered a violation of section 1501.32 of the Revised Code, and the permit may be subject to suspension.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-10 Appeal procedures.

(A) No denial of an application for permit or a revocation of permit, shall be valid unless the applicant is afforded the opportunity for a hearing pursuant to sections 119.01 to 119.13 of the Revised Code. The date set for such a hearing shall be within fifteen days but no earlier than seven days after the party has requested a hearing, unless otherwise agreed to by both the director or his authorized representative and the party.

(B) Upon the denial of his application, the applicant shall be notified of his right to a hearing. Such notice shall be given by registered mail, return receipt requested, and shall include the charges or other reasons for such proposed action, the law or rule directly involved, and a statement informing the party that he is entitled to a hearing if he requests it within thirty days of the time of mailing the notice. The notice shall also inform the party that at the hearing he may appear in person, may be represented by his attorney, or by such other representative as is permitted to practice before the agency, or may present his position, arguments or contentions in writing and that at the hearing he may present evidence and examine witnesses appearing for and against him. A copy of this notice shall be mailed to attorneys or other representatives of record representing the party.

(C) At such hearing the director may grant a motion to intervene. A petition to intervene may be filed by any person claiming a right to intervene or having an interest of such nature that intervention is necessary or appropriate to the administration of the statute under which the processing is sought. Such right or interest may be a right conferred by statute; an interest which may be directly affected and which is not adequately represented by existing parties; and any other interest of such nature that may be in the public's interest. A person may be denied intervention in such matter when he fails in a timely manner to do so, or when the movant's participation will not assist in the determination of the issues in question, or when the intervention will unnecessarily delay the hearing.

(D) Any party adversely affected by a denial or revocation of a permit by the director issued pursuant to adjudication may appeal to the court of common pleas of Franklin County. Any such notice of appeal shall be filed within fifteen days after the mailing of notice of the director's order.

(E) The filing of the appeal does not automatically stay the effectiveness of the orders of the director, and until such time as the orders are reversed or otherwise declared unlawful, or a stay of the orders is granted by the court, the orders shall remain in full force and effect.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/85, 11/28/90, 11/28/95, 11/28/00

1501-2-11 Public participation.

(A) Upon accepting a completed application for a diversion permit required by section 1501.32 of the Revised Code, the director shall notify local officials in the counties from which the water is proposed to be exported and to which the water is proposed to be imported, including but not limited to county commissioners, township trustees, and mayors or managers of municipalities, that the application has been received and accepted as complete. Upon determining that other counties will also be impacted by the proposed diversion, the director shall notify local officials in these counties as well. The director shall provide additional information regarding the proposed diversion to local officials upon request.

(B) Upon accepting a completed application for a diversion permit required by section 1501.32 of the Revised Code, the director shall make a reasonable effort, through the issuance of news releases or other appropriate means determined by the director, to notify the general public throughout the state of Ohio that the application has been received and accepted as complete. The director shall provide additional information regarding the proposed diversion to members of the general public upon request.

(C) Upon determining that adequate interest exists among local officials and members of the general public, the director shall conduct a public meeting within sixty days from the time notification is made pursuant to paragraph (A) of this rule, in order to further explain the proposal and to solicit comments.

(D) The director shall accept written comments regarding the proposed diversion from local officials and the general public for sixty days from the time notification is made pursuant to paragraph (A) of this rule.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/2000

1501-2-12 Coordination with the federal great lakes diversion statute and the great lakes charter.

(A) Within ninety days of accepting a completed application for a diversion which is subject to the provisions of section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230 42 U.S.C. 1962d-20 , the director shall either:

(1) Deny the permit in accordance with the provisions set forth in rule 1501-2-06 of the Administrative Code; or

(2) Formulate a recommendation to approve the diversion proposal and transmit it, along with the completed application and other relevant materials, to the governor of Ohio for consideration pursuant to section 1109 of the "Water Resource Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 .

(B) Upon being notified that the governor of Ohio has denied permission for the diversion proposal pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 , the director shall deny the permit consistent with the provisions of rule 1501-2-07 of the Administrative Code.

(C) Upon being notified that the governor of Ohio has indicated that the diversion proposal is approvable pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 , the director shall:

(1) Notify the governors and appropriate water management agencies of the other great lakes states and request the approval of the governors for the diversion proposal pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 .

(2) Notify the premiers and appropriate water management agencies of the Canadian provinces of Quebec and Ontario and request their comments on the diversion proposal pursuant to the prior notice and consultation provisions of the great lakes charter.

(3) If the diversion proposal directly involves the waters of lake Erie, consult the international joint commission to determine whether the proposed diversion is subject to the Boundary Waters Treaty of 1909.

(4) The notification shall include a copy of the completed diversion application and any other relevant information not contained in the application.

(5) The director shall make a reasonable effort to provide any additional information requested by the parties listed in paragraphs (C)(1), (C)(2), and (C)(3) of this rule. If necessary, the director shall request the applicant to provide the information requested.

(6) If requested by any of the parties listed in paragraphs (C)(1), (C)(2), and (C)(3) of this rule, the director shall convene a consultation meeting with the other great lakes states and provinces, providing at least a thirty day notice of the meeting.

(D) If one or more of the great lakes states' governors indicate that they are unwilling to approve the diversion proposal without modifications, the director shall provide the applicant the opportunity to amend the diversion application. If the applicant does so amend the application, the director will notify the parties listed in paragraphs (C)(1), (C)(2), and (C)(3) of this rule about the amendment and will request the great lakes states' governors to approve the diversion proposal as amended.

(E) Upon being notified that any of the great lakes states' governors has denied permission for the diversion proposal pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 , the director shall deny the permit application consistent with the provisions of rule 1501-2-07 of the Administrative Code.

(F) Upon being notified that all the great lakes states' governors have approved the diversion proposal pursuant to section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230, 42 U.S.C. 1962d-20 , the director shall approve the permit application consistent with the provisions of rule 1501-2-07 of the Administrative Code. Upon issuing the diversion permit, the director will notify the other great lakes states and the Canadian provinces of Quebec and Ontario of such issuance.

(G) Within ninety days of accepting a completed application for a diversion which is not subject to the provisions of section 1109 of the "Water Resources Development Act of 1986," 100 Stat. 4230 42 U.S.C. 1962d-20 but is subject to the provisions of the great lakes charter, the director shall either:

(1) Deny the permit in accordance with the provisions set forth in rule 1501-2-06 of the Administrative Code; or

(2) Notify the governors and appropriate water management agencies of the great lakes states and the premiers and appropriate water management agencies of the Canadian provinces of Quebec and Ontario and request their comments on the diversion proposal pursuant to the prior notice and consultation provisions of the great lakes charter.

R.C. 119.032 review dates: 10/13/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: R.C. 1501.31

Rule Amplifies: R.C. 1501.32

Prior Effective Dates: 11/28/2000