Chapter 1501-7 Waters from Canal or Canal Reservoir

1501-7-01 Definition of terms.

(A) "Agricultural use" means water used for crop irrigation, livestock watering, nurseries, or other agricultural purposes by a person engaged in the production of crops, vegetables, trees, shrubs, flowers, seeds, livestock, or poultry.

(B) "Applicant" means the person, individual, corporation, partnership, proprietor, or public agency that is making a request for a lease or sale of water.

(C) "Canal" means a constructed open channel or waterway that transports water and is on canal lands as defined in section 1520.01 of the Revised Code.

(D) "Canal reservoir" means any artificial lake or impoundment created by a dam that was constructed to provide water to any canal system in this state. The canal reservoirs are Buckeye Lake. East Reservoir, Forty Acre Pond, Grand Lake St. Marys, Indian Lake, Lake Loramie, Long Lake, Nesmith Lake, Nimisila Reservoir, North Reservoir, Summit Lake, Tuscarawas River Diversion Dam Reservoir, and West Reservoir.

(E) "Chief" means the chief of the division of water, department of natural resources, state of Ohio.

(F) "Commercial use" means water used by a business and includes, but is not limited to, motels, hotels, restaurants, marinas, and golf courses.

(G) "Dam" means any artificial barrier together with appurtenant works, which either does or may impound water or liquefied material.

(H) "Department" means the department of natural resources, state of Ohio.

(I) "Director" means the director of the department of natural resources, state of Ohio.

(J) "Division" means the division of water of the department of natural resources, state of Ohio.

(K) "Domestic use" means withdrawal of water from a canal or canal reservoir by an individual for use on residential property by means of a pump or other device that generally has a discharge line with an outside diameter of not more than one and one-half inches. This definition excludes water withdrawn for public water supply use.

(L) "Fire protection use" means water used for firefighting and training for firefighting.

(M) "Hydroelectric power generation use" means water used specifically for the generation of electricity by water turbines.

(N) "Person" means any agency of this state, any political subdivision of this state or the United States, or any legal entity defined as a person under section 1.59 of the Revised Code.

(O) "Public water supply use" means water used by a system that pipes water for human consumption if such system has at least fifteen service connections or regularly serves at least twenty individuals sixty or more days out of the year.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 3/10/2003

1501-7-02 Severability.

The invalidation by a court of a rule adopted or amended pursuant to division (B) of section 1520.03 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: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003

1501-7-03 General provisions.

(A) No person shall withdraw, take, or divert water from any canal or canal reservoir operated and maintained by the director without first obtaining a lease or sale agreement from the director in accordance with section 1520.03 of the Revised Code. Any sale or lease agreement for water from a canal or canal reservoir shall be administered by the division in accordance with sections 1520.03 and 1521.08 of the Revised Code.

(B) The withdrawal of water from any canal or canal reservoir for domestic use is exempt in accordance with section 1520.03(C) of the Revised Code. However, the director may require water conservation measures for water that is withdrawn from any canal or canal reservoir for domestic use during drought conditions, or emergencies declared by the governor.

(C) This chapter of the Administrative Code shall apply to all waters impounded in any canal reservoir or canal operated and maintained by the director except the waters of Lake Erie and that portion of streams or rivers used for canal navigation.

(D) The director may sell or lease water from any canal or canal reservoir that the director operates and maintains only to the extent that the water is in excess of the quantity required for navigation, recreation, and wildlife purposes, and to the extent that such canal or canal reservoir was designed to yield a supply of water for a purpose other than recreation or wildlife.

(E) The quantity of water that may be sold or leased from a canal reservoir or canal shall be determined by the division using accepted engineering methods and practices.

(F) Any water withdrawn for commercial, industrial, agricultural, hydroelectric power generation, or public water supply use shall be measured by a metering system or other method acceptable to the division. All withdrawals as mentioned above shall be reported to the division on a form provided by the division and within a time period specified by the division.

(G) The director may restrict water use that is authorized in lease and sale agreements issued in accordance with section 1520.03 of the Revised Code during periods of drought, dam or canal embankment emergency, or any other events that may affect water supplies.

(H) The director shall not sell or lease water from a canal or canal reservoir within any state nature preserve or state natural area that is owned by the department.

(I) No lease or sale agreement for the use of water from a canal or canal reservoir that is operated and maintained by the director shall be required for operation of departmental facilities.

(J) Except as provided in rule 1501-7-06 of the Administrative Code, the director shall not sell, lease, or otherwise provide water to any person from any canal reservoir or canal that was constructed or purchased, wholly or in part, with funds from hunting or fishing licenses, deer and wild turkey permits, or trapping permits as provided in sections 1533.15 and 1533.33 of the Revised Code.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003

1501-7-04 Classes of water use.

(A) The following classes of water use are hereby created: domestic, commercial, industrial, agricultural, fire protection, hydroelectric power generation, and public water supply. All determinations as to the class of water use shall be made by the division.

(B) Any lease or sale agreement for commercial, industrial, public water supply, hydroelectric power generation, or agricultural water use shall be for a minimum of one million gallons per year.

(C) When withdrawing water for public water supply use as a backup source from a canal or canal reservoir, the division shall be notified immediately of commencement of said withdrawal. Withdrawal amounts shall be reported to the division pursuant to paragraph (F) of rule 1501-7-03 of the Administrative Code. For such withdrawals greater than one million gallons per year, the annual payment to the department shall be adjusted based on the rate established pursuant to paragraph (D) of rule 1501-7-05 of the Administrative Code and the total number of gallons per year withdrawn.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003

1501-7-05 Lease and sale agreements.

(A) Any person desiring to take, divert, or otherwise make use of water for commercial, industrial, agricultural, fire protection, hydroelectric power generation, or public water supply use from a canal or canal reservoir shall first submit a request in writing to the division which shall include the following:

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

(2) The name of the appropriate contact person;

(3) The location(s) of the proposed withdrawal, diversion, or use;

(4) The intended purpose of the withdrawal, diversion, or use;

(5) The estimated quantity of water to be used annually;

(6) A description of the method of withdrawal;

(7) A description of the type of metering system to measure or method used to estimate withdrawal amounts.

(B) The chief shall consult with all affected divisions in the department on all requests pursuant to paragraph (A) of this rule.

(C) Within thirty days from the date of receipt of a written request pursuant to paragraph (A) of this rule to withdraw water from a canal or canal reservoir, the director shall do one of the following:

(1) Notify the applicant that the request for a lease or sale is approved or denied, and if denied, the reason for denial; or

(2) Notify the applicant of any modification or additional information needed to evaluate the request for a lease.

(D) The rate for the cost for water for commercial, industrial, agricultural, hydroelectric power generation, and public water supply uses shall be determined by the following formula:

C = 500 + 250 (M-1)75 C equals the annual cost in dollars and M equals the number of million gallon units of water

(E) Any lease agreement granted by the director for fire protection shall be granted without cost for water to the lessee. All capital operation and maintenance cost associated with the project shall be the responsibility of the applicant.

(F) "Escalator clause" - the lease rate as provided for in paragraph (D) of this rule, shall be recalculated every five years beginning on the first day of July following the fifth anniversary of the effective date of this rule and any increase shall be at the same rate of increase as the "National Consumers Price Index" (C.P.I.). The annual base rate for calculation purposes shall be the rate established by the U.S. department of labor for the city of Cleveland, Ohio, urban, all categories (C.P.I.U.) for November, 2001. That annual base rate is 172.3. The new rate shall be the most recent C.P.I.U. annual rate established to the nearest month prior to the date of recalculation by the U.S. department of labor. Once the new annual rate has been determined and the amount of increase has been calculated, then the new annual rate shall become the base annual rate for calculation purposes for the next five year period of time. This change in rates shall continue until such time as the C.P.I.U. is no longer used or the director determines that another method may be more accurate. The lease rate percentage increase shall be the following:

The base annual rate shall be subtracted from the new annual rate, the base rate shall be divided into the difference between the base rate and the new rate and the answer will be the percentage of increase or decrease over that five year period of time:

example: new rate (nr) 176.3 - base rate (br) 172.3 = difference (df) 4.0

(df) 4.0 / (br) 172.3 = .0232 or 2.32 percent increase

current lease rate: $10, 000.00 X .0232 increase=$ 232.00 new lease rate: $10, 232.00

At no time shall the lease rate charged in any lease written by the state of Ohio pursuant to section 1520.03 of the Revised Code or by these rules be lowered.

Should the United States department of labor discontinue the use of C.P.I. the director shall select as nearly compatible a statistical formula on the purchasing power of the consumer dollar as is then available and published in some responsible governmental publication.

(G) Any lease or sale agreement granted under this rule shall be valid for a period of time as determined by the director but shall not exceed twenty-five years.

(H) Any person holding a lease or sale agreement shall permit agents, employees, or other representatives of the director to inspect any pump hookups, intake structures, or records that are required under this chapter of the Administrative Code at any reasonable time.

(I) The withdrawal of water from a canal or canal reservoir at a location other than that specified in a person's lease or sale agreement or for a use other than that specified in the agreement shall be considered an unauthorized withdrawal of water under section 1520.03 of the Revised Code. Any unauthorized withdrawal shall be sufficient cause for the director to terminate the agreement.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003

1501-7-06 Emergency water use.

(A) The director may lease or sell water from any canal or canal reservoir operated and maintained by the director during emergency situations in which water supplies are interrupted due to drought, contamination, or other circumstances. Lease or sale agreements during emergency situations shall be for no more than one hundred eighty days and shall only be for public water supply, fire protection, or livestock watering.

(B) If the emergency request is for a public water supply, the governing body shall have declared by resolution an emergency and shall have adopted and be enforcing water conservation measures.

(C) The water rate established pursuant to paragraph (D) of rule 1501-7-05 of the Administrative Code shall apply to emergency water lease or sale agreements except as specified in paragraph (D) of this rule.

(D) Pursuant to an emergency water withdrawal directive the director may allow water to be withdrawn from canals and canal reservoirs that are owned and operated by the department by truck or trailer tanks for emergency livestock water supply. Such water may be sold to persons at a rate determined by the director in the sale agreement.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003

1501-7-07 Actions of the director.

(A) Any person or party claiming to be aggrieved or adversely affected by any action of the director pursuant to the rules 1501-7-01 to 1501-7-06 of the Administrative Code or section 1520.03 of the Revised Code pertaining to water leasing/sale agreements from canals and canal reservoirs is entitled to a hearing in accordance with Chapter 119. of the Revised Code if the person or party sends a written request for a hearing to the director within thirty days after the date on which the notice is mailed or otherwise provided to the person or party.

(B) Whenever a person or party requests a hearing pursuant to provisions of Chapter 119. of the Revised Code, the director shall immediately set the date, time, and place for such hearing and forthwith notify the person or party thereof. The date for such hearing shall be written fifteen days, but not earlier than seven days, after the person or party has requested a hearing, unless otherwise agreed to by both the director and the party.

R.C. 119.032 review dates: 02/08/2008 and 02/08/2013

Promulgated Under: 119.03

Statutory Authority: RC 1520.03 , 1501.01

Rule Amplifies: RC 1520.03

Prior Effective Dates: 03/10/2003