Chapter 3745-32 Section 401 Water Quality Certifications

3745-32-01 [Effective until 1/2/2017] Definitions.

For the purposes of this chapter the following definitions shall apply:

(A) "Applicant" means any person required to obtain a section 401 water quality certification from the Ohio EPA.

(B) "Director" means the director of the Ohio EPA or his duly authorized representative.

(C) "Discharge of dredged material" means any addition of dredged material, in excess of one cubic yard when used in a single or incidental operation, into waters of the state. The term includes, without limitation, the addition of dredged material to a specified disposal site which is located in waters of the state, or the runoff or overflow of dredged material from a contained land or water disposal area which enters the waters of the state. Discharges of pollutants into waters of the state resulting from the subsequent onshore processing of dredged material that is extracted for any commercial use (other than fill) are not included within this term and are subject to section 402 of the Federal Water Pollution Control Act, even though the extraction of such material may require a permit from the army corps of engineers under section 10 of the Rivers and Harbors Act.

(D) "Discharge of fill material" means the addition of fill material into waters of the state for the purpose of creating fastlands, elevations of land beneath waters of the state, or for impoundments of water. The term includes, but is not limited to, the placement of the following in waters of the state: fill that is necessary to the construction of any structure; structures or impoundments requiring rock, sand, dirt, or other pollutants for its construction; site-development fills for recreational, industrial, commercial, residential, or other uses; causeways or road fills; dams and dikes; artificial islands, property protection or reclamation devices such as riprap, groins, seawalls, breakwalls, and bulkheads and fills; beach nourishment; levees; sanitary landfills; fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants, and subaqueous utility lines; or artificial reefs.

(E) "Dredged material" means material that is excavated or dredged from waters of the state. The term does not include material resulting from normal farming, silviculture, and ranching activities, such as plowing, cultivating, seeding, and harvesting, for production of food, fiber, and forest products.

(F) "Federal Water Pollution Control Act" means the Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 886, 33 U.S.C. 1251, as amended.

(G) "Fill material" means any pollutant used to create fill to replace an aquatic area with dry land or to change the bottom elevation of a water body for any purpose. "Fill material" does not include the following:

(1) Material resulting from normal farming, silviculture, and ranching activities, such as plowing, cultivating, seeding, and harvesting, for the production of food, fiber, and forest products;

(2) Material placed for the purpose of maintenance of existing structures, including emergency reconstruction of recently damaged parts of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures.

(H) "General permit" means a department of the army authorization that is issued for a category or categories of discharges of dredged or fill material that are substantially similar in nature and that cause only minimal individual and cummulative adverse environmental impact.

(I) "Nationwide permit" means a department of the army authorization that has been issued for certain specified activities nationwide.

(J) "Ohio EPA" means the Ohio environmental protection agency or its director, as the context or other law or regulations may require.

(K) "Person" means the state, any municipal corporation, political subdivision of the state, person as defined in section 1.59 of the Revised Code, interstate body created by compact, or the federal government or any department, agency, or instrumentality thereof.

(L) "Section 401 water quality certification" means certification from Ohio EPA, pursuant to section 401 of the Federal Water Pollution Control Act, Chapter 6111. of the Revised Code and Chapter 3745-32 of the Administrative Code, that any discharge, as set forth in section 401, will comply with sections 301, 302, 303, 306 and 307 of the Federal Water Pollution Control Act.

(M) "The Rivers and Harbors Act" means the Rivers and Harbors Act of 1899, 30 Stat. 1151, 33 U.S.C. 401.

(N) "Waters of the state" means all streams, lakes, ponds, wetlands, watercourses, waterways, wells, springs, irrigation systems, drainage systems and all other bodies or accumulations of water, surface and underground, natural or artificial, which are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters which do not combine or effect a junction with natural surface or underground waters, including those waters that are presently used, have been used or are susceptible to use to transport interstate commerce up to the head of navigation.

(O) "Wetlands" are areas where the water table is at, near, or above the land surface long enough each year to support the growth of water dependent vegetation and to result in the formation of characteristic wet soil types. These include marshes, swamps, bogs and similar areas.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-01 [Effective 1/2/2017] Definitions.

In addition to the definitions in rules 3745-1-02, 3745-1-05 and 3745-1-50 of the Administrative Code, the following definitions apply to this chapter.

(A) "33 C.F.R." and "40 C.F.R." means Title 33 and Title 40, respectively, of the Code of Federal Regulations effective July 1, 2015.

" [The Code of Federal Regulations can be generally found in public libraries, and can be viewed electronically online at http://www.gpo.gov/fdsys/ and purchased by writing to: Superintendent of Documents. Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954.]

(B) "401 certification" means a Section 401 water quality certification from Ohio EPA, pursuant to section 401 of the act, Chapter 6111. of the Revised Code and this chapter, that any discharge, as set forth in section 401, shall comply with sections 301, 302, 303, 306 and 307 of the act.

(C) "Act" means the Federal Water Pollution Control Act amendments of 1972, 86 Stat. 886 (commonly referred to as the Clean Water Act), 33 U.S.C. sections 1251 to 1387, as amended through July 1, 2015.

" [The act can be generally found in public libraries, and can be viewed electronically online at http://www.gpo.gov/fdsys/ and purchased by writing to: Superintendent of Documents. Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954.]

(D) "Applicant" means any person required to obtain a 401 certification from the Ohio EPA.

(E) "Corps" means the United States army corps of engineers.

(F) "Discharge of dredged material" means any addition of dredged material into, including redeposit of dredged material other than incidental fallback, as those terms are construed under federal law, within waters of the state.

(1) Discharge of dredged material includes, but is not limited to, the following:

(a) The addition of dredged material to a specified discharge site located in waters of the state.

(b) The runoff or overflow, associated with a dredging operation, from a contained land or water disposal area.

(c) Any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the state which is incidental to any activity including mechanized landclearing, ditching, channelization, or other excavation.

(2) Discharge of dredged material does not include the following:

(a) Discharges of pollutants into waters of the state resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill). These discharges are subject to section 402 of the Clean Water Act even though the extraction and deposit of such material may require a permit from the corps or applicable state.

(b) Activities that involve only the cutting or removing of vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material.

(c) Incidental fallback.

(G) "Discharge of fill material" means the addition of fill material into waters of the state. The term generally includes, without limitation, the following: placement of fill that is necessary for the construction of any structure or infrastructure in a water of the state; the building of any structure, infrastructure, or impoundment requiring rock, sand, dirt, or other material for its construction; site-development fills for recreational, industrial, commercial, residential, or other uses; causeways or road fills; dams and dikes; artificial islands; property protection and/or reclamation devices such as riprap, groins, seawalls, breakwaters, and revetments; beach nourishment; levees; fill for structures such as sewage treatment facilities, intake and outfall pipes associated with power plants and subaqueous utility lines; placement of fill material for construction or maintenance of any liner, berm, or other infrastructure associated with solid waste landfills; placement of overburden, slurry, or tailings or similar mining related materials; and artificial reefs.

(H) "Dredged material" means material that is excavated or dredged from waters of the state.

(I) "Fill material" means any material used to fill a surface water of the state, to replace a surface water of the state with dry land, or to change the bottom elevation of a surface water of the state, and that consists of suitable material that is free from toxic contaminants in other than trace quantities.

(J) "General permit" means a corps authorization that is issued on a nationwide or regional basis for a category or categories of activities.

(K) "Letter of permission" means a corps permit issued through an abbreviated processing procedure which includes coordination with federal and state fish and wildlife agencies, as required by the fish and wildlife coordination act and a public interest evaluation but without the publishing an individual public notice.

(L) "Nationwide permit" means a type of corps general permit which authorizes activities on a nationwide basis unless specifically limited.

(M) "Ohio EPA" means the Ohio environmental protection agency or its director, as the context or other law or regulations may require.

(N) "Person" means the same as defined in section 6111.01 of the Revised Code.

(O) "Regional permit" means a type of corps general permit that has been issued for certain specified activities on a regional basis.

(P) "The Rivers and Harbors Act" means the Rivers and Harbors Act of 1899, 30 Stat. 1151, 33 U.S.C. 401, as amended through July 1, 2015.

" [The Rivers and Harbors Act can be generally found in public libraries, and can be viewed electronically online at http://www.gpo.gov/fdsys/ and purchased by writing to: Superintendent of Documents. Attn: New Orders, PO Box 371954, Pittsburgh, PA 15250-7954.]

(Q) "Waters of the state" means the same as defined in section 6111.01 of the Revised Code.

(R) "Wetland" means the same as defined in section 6111.02 of the Revised Code.

Replaces: 3745-32-01

Effective: 1/2/2017
Five Year Review (FYR) Dates: 01/02/2022
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982, 4/17/01 (Emer)

3745-32-02 [Effective until 1/2/2017] Section 401 water quality certification required.

(A) A section 401 water quality certification is required to obtain the following:

(1) A permit from the army corps of engineers pursuant to section 10 of the Rivers and Harbors Act;

(2) A permit from the army corps of engineers pursuant to section 404 of the Federal Water Pollution Control Act;

(3) A permit from the army corps of engineers pursuant to both section 10 of the Rivers and Harbors Act and section 404 of the Federal Water Pollution Control Act; and

(4) Any other federal permit or license to conduct any activity which may result in any discharge to waters of the state.

(B) No certification issued pursuant to this chapter shall be effective until all applicable fees have been paid.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-02 [Effective 1/2/2017] Applicability.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules and federal statutory provisions referenced in this rule, see rule 3745-32-01 of the Administrative Code.]

(A) Any applicant for a federal license or permit to conduct any activity which may result in a discharge of dredged or fill material to a water of the state shall apply for and obtain a 401 certification from Ohio EPA.

(B) No person shall engage in an activity requiring a 401 certification prior to obtaining that certification from Ohio EPA.

(C) No 401 certification issued pursuant to this chapter shall be effective until all applicable fees have been paid.

(D) Exemptions. No 401 certification need be obtained for the following:

(1) The discharge of dredged or fill material that is part of the construction of a federal project specifically authorized by congress, provided the effects of such discharge are included in an environmental impact statement submitted to congress prior to the actual discharge.

(2) The discharge of dredged or fill material for any activity that is not prohibited by or otherwise subject to regulation under Section 404 of the act as specifically set forth in 33 C.F.R. 323.4 provided that no other federal license or permit is required.

Replaces: 3745-32-02, 3745-32-03

Effective: 1/2/2017
Five Year Review (FYR) Dates: 01/02/2022
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982, 4/17/01 (Emer)

3745-32-03 [Effective until 1/2/2017] Section 401 water quality certification exemptions.

No section 401 water quality certification need be obtained if:

(A) The secretary of the army has issued a general permit pursuant to section 404(e) of the Federal Water Pollution Control Act; or

(B) The discharge of dredged or fill material is part of the construction of a federal project specifically authorized by congress, provided the effects of such discharge are included in an environmental impact statement submitted to congress prior to the actual discharge.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-03 [Effective 1/2/2017] Section 401 water quality certification application requirements and procedures.

[Comment: For dates of non-regulatory government publications, publications of recognized organizations and associations, federal rules and federal statutory provisions referenced in this rule, see rule 3745-32-01 of the Administrative Code.]

(A) The filing of an application for a federal permit or license for which a 401 certification is required does not constitute an application for a 401 certification with the state of Ohio.

(1) The director may waive the application requirement if, in the judgment of the director, the activity for which a federal permit or license is sought will not result in a discharge to the waters of the state.

(2) If the federal permit sought is a nationwide permit, a regional permit, or a letter of permission issued by the corps and Ohio EPA has issued a certification for the federal permit, no further application is required to be submitted to Ohio EPA under this chapter provided that the project meets all of the terms and conditions for coverage under the certification or the director has authorized the project to proceed under the terms of the general certification based on a case specific determination of the environmental impacts of the project.

(B) Application requirements.

(1) Any person requesting authorization for an activity that requires a 401 certification shall comply with the application procedures set forth in this rule. The director shall prescribe the form and required content of the application for a 401 certification. Additional information shall be submitted in accordance with the antidegradation requirements in rules 3745-1-05 and 3745-1-54 of the Administrative Code. The director may request additional information if, in the judgment of the director, additional information is necessary to determine whether the applicant meets the approval criteria in paragraph (C) of this rule.

(2) Any application for a 401 certification subject to the provisions of this rule shall be submitted on forms provided by the director and completed in accordance with the corresponding application instructions. The application shall be submitted no later than forty-five days after the publication of the corps 404 public notice, if applicable, and shall include the following:

(a) Current and unexpired correspondence from the corps documenting the jurisdictional status of the waters located within the project area.

(b) For each wetland within a project boundary, a wetland characterization analysis consistent with "Ohio Rapid Assessment Method for Wetlands v. 5.0, February 1, 2001." The Ohio rapid assessment method protocol is available on the Ohio EPA website athttp://www.epa.ohio.gov/dsw/401/ecology.aspx. The Ohio rapid assessment method shall include complete and accurate forms, including the background information, scoring boundary worksheet, narrative rating, quantitative rating, and wetland categorization worksheets completed and submitted in accordance with the procedures outlined in the Ohio rapid assessment method manual.

(c) If the project involves a stream for which a specific aquatic life use designation found in Chapter 3745-1 of the Administrative Code has not been made, data sufficient to determine the existing aquatic life use.

(d) A specific and detailed mitigation plan prepared in accordance with the requirements in 33 C.F.R. Part 332 and rule 3745-1-54 of the Administrative Code including the location and proposed real estate instrument or other available mechanism for protecting the property long term.

(e) A minimum of four high resolution color photographs taken while facing each of the four cardinal directions of each wetland proposed for impact. A minimum of three high resolution color photographs taken while facing upstream of the proposed impact area, downstream of the proposed impact area, and one close up which clearly depicts the substrate composition and size for each stream proposed for impact. A minimum of three high resolution color photographs for all other waters of the state proposed for impact. Photographs must accurately depict the quality of the water of the state and may not include a majority of dying or dead vegetation and excessive cover due to seasonal conditions that vegetation and substrates cannot be observed, such as leaf litter, snow, or ice. Photographs deemed to be insufficient of representing the water of the state will be required to be retaken once seasonal conditions are appropriate. Photographs shall be clearly labeled with the name, direction, and date.

(f) Adequate documentation confirming that the applicant has requested comments from the Ohio department of natural resources and the United States fish and wildlife service regarding threatened and endangered species, including the presence or absence of critical habitat.

(g) Descriptions, schematics, and appropriate economic information concerning the applicant's alternatives analysis prepared in accordance with 40 C.F.R. Part 230 and required by rules 3745-1-05 and 3745-1-54 of the Administrative Code.

(h) The applicant's investigation report of the waters of the United States in support of a federal license or permit application concerning the project.

(i) In the case of jurisdictional waters, a copy of the corps public notice regarding the application for a permit under section 404 of the act for the proposed project or other notification from the corps that the project will be authorized under a general permit or letter of permission if applicable.

(3) Applicable fees. A person that applies for a 401 certification under Chapter 6111. of the Revised Code and this chapter shall pay fees in accordance with section 3745.114 of the Revised Code.

(4) Applicants regulated under division 1501:13 of the Administrative Code may elect to utilize alternate, consolidated application procedures as approved by the director, the director of Ohio department of natural resources, and the Corps.

(C) Application processing

(1) Not later than fifteen business days after the receipt of an application for an individual 401 certification, the director shall notify the applicant whether the application is complete.

(a) If the application is not complete, the director shall include in the notice an itemized list of the information or materials that are necessary to complete the application. No further processing of the application shall take place until the itemized list of information or materials requested by the director is received and determined to be complete.

(b) If the applicant fails to provide the information within sixty days after the director's receipt of the application and a corps public notice regarding the application for a 404 permit has not been published for the project, the director may return the incomplete application and take no further action on the application.

(c) If the application is not complete, and a corps public notice regarding the application for a 404 permit has been published, all the items required by paragraph (B) of this rule must be received within one hundred eighty days of the corps public notice date.

(2) If the director fails to notify the applicant within fifteen business days regarding the completeness of the application, the application is considered complete.

(3) As it is used in this rule, "complete application" means an application in which all of the items required by paragraph (B) of this rule have been provided and the items are complete. A complete application does not equate to an approvable project.

(D) Criteria for decision by the director.

(1) The director shall not issue a 401 certification unless the director determines that the applicant has demonstrated that the discharge of dredged or fill material to waters of the state or the creation of any obstruction or alteration in waters of the state, will not do any of the following:

(a) Violate the antidegradation requirements in rules 3745-1-05 and 3745-1-54 of the Administrative Code.

(b) Prevent or interfere with the attainment or maintenance of applicable water quality standards in Chapter 3745-1 of the Administrative Code.

(c) Result in a violation of any applicable provision of the act.

(2) Except as provided in paragraph (D)(3) of this rule, the director shall not issue a 401 certification for any harbor or navigation maintenance activities proposing to deposit dredged material in any part of lake Erie that is within the territorial boundaries of this state or in the direct tributaries of lake Erie within this state unless the director has determined the following:

(a) The dredged material will not result in a modeled increase in "bioaccumulation" of a "bioaccumulative chemical of concern" as those terms are defined in rule 3745-1-02 of the Administrative Code. Dredged material found to be unsuitable for the deposit of dredged material pursuant to this paragraph shall be placed in a confined disposal facility or an upland location determined to be protective of public health and the environment.

(b) The placement of the dredged material will not violate any international treaties or interstate compacts regarding any bioaccumulative chemical of concern as defined under those treaties or compacts.

(3) The preclusions set forth in paragraph (D)(2) of this rule shall not apply to placing the material into a confined disposal facility that is located in lake Erie or the direct tributaries or the discharge of de minimus dredged material associated with dewatering operations necessary to facilitate placement of the dredged material in a confined disposal facility or upland location.

(4) Notwithstanding an applicant's demonstration of the criteria in paragraphs (D)(1) and (D)(2) of this rule, the director may deny an application for a 401 certification if the director concludes that the discharge of dredged or fill material to waters of the state or the creation of any obstruction or alteration in waters of the state will result in adverse long term or short term impacts on water quality.

(E) Time frames for taking an action on a 401 certification.

(1) The director shall take an action on a 401 certification for an activity in waters of the state within one hundred eighty days of receipt of a complete application pursuant to paragraph (A) of this rule.

(2) An action on a 401 certification shall be taken and may be challenged in accordance with Chapters 3745-47 and 3745-49 of the Administrative Code.

(F) Modification.

(1) An applicant seeking to modify a 401 water quality certification shall notify Ohio EPA in writing, setting forth a description of the proposed modifications and the reasons therefore. The director may approve, approve with conditions, or deny any request for modification, or require the applicant to apply for and obtain a new 401 certification if the scope or purpose of the project is changed beyond that authorized in the original certification.

(a) Approvals or approvals with conditions, of the modification, shall be issued as final actions and subject to the public notice requirements of Chapter 3745-49 of the Administrative Code.

(b) Applications for modification of previously issued 401 certifications will be subject to all the requirements of rules 3745-1-05 and 3745-1-54 of the Administrative Code if applicable.

(2) A 401 certification shall be modified and may be challenged in accordance with Chapters 3745-47 and 3745-49 of the Administrative Code.

(G) Transfer.

(1) A 401 certification may be transfered to a third party provided that the original certification holder submits to the director all of the following:

(a) Advance written notice of the proposed transfer.

(b) A signed and notarized statement by the transferee assuming the obligations of the 401 certification.

(c) A signed and notarized statement by the original certification holder regarding project status and compliance with the terms of the 401 certification.

(2) The person to whom the 401 certification was originally issued shall continue to be responsible for ensuring that the conditions of the 401 certification are fulfilled, and shall be liable for any violations thereof, until such time as Ohio EPA receives documentation required by paragraph (G)(1) of this rule and an official notification of transfer is issued identifying the new holder of the certification.

(H) Revocation.

(1) The director may revoke a 401 certification if the director concludes at any time that any applicable laws or rules have been violated, or when the director determines that the 401 certification approval was based on false or misleading information at the time that the application was originally submitted to Ohio EPA.

(2) A 401 certification shall be revoked and may be challenged in accordance with Chapters 3745-47 and 3745-49 of the Administrative Code.

(I) Expiration and extension.

(1) A 401 certification shall expire upon the expiration of the applicable federal license or permit.

(2) A 401 certification shall remain valid if the applicable federal license or permit is extended so long as no additional water quality impacts beyond those authorized in the original or modified 401 certification will result from the renewal of that certification. If additional water quality impacts beyond those authorized in the original or modified 401 certification are proposed, the applicant must apply for a new 401 certification in accordance with the criteria established in paragraph (B) of this rule or a 401 modification in accordance with the criteria established in paragraph (F) of this rule.

(J) Denial.

(1) Any application that fails to achieve the criteria established in paragraph (B) or (C) of this rule may be denied.

(2) The director shall provide a written explanation to an applicant for a 401 certification of the basis for the proposed denial of the application, if applicable.

(3) A 401 certification shall be denied and may be challenged in accordance with Chapters 3745-47 and 3745-49 of the Administrative Code.

(K) Conditions of certification.

(1) The director may impose such terms and conditions as part of a 401 certification as are appropriate or necessary to ensure compliance with applicable laws and to ensure adequate protection of water quality and human health.

(2) Prior to the issuance of a 401 certification or as a condition of any 401 certification, the director may require that the applicant perform various environmental quality tests to ensure adequate protection of water quality and human health, including, but not limited to, chemical analyses of water, sediment or fill material, and bioassays and biological monitoring.

(L) Emergency certification.

(1) If the corps determines an emergency exists as defined under in 33 C.F.R. 325.2(e)(4) and seeks to process a 404 application in accordance with procedures under that rule, the director may issue an emergency certification authorizing the placement of fill or dredged material into waters of the state if the director concurs with the existence of an emergency. To the extent that the time frames for certification do not allow the application to be processed in accordance with normal procedures, the director shall issue the certification as a final action and then require and process a complete application in accordance with paragraph (L)(2) of this rule.

(2) Upon the expiration of the emergency, the director shall require the applicant to submit a complete application for a 401 certification that addresses the emergency fill and any additional placement of fill or dredged material into waters of the state, beyond that authorized by the emergency certification.

(M) Corps general permits and letters of permission.

(1) The director may issue, deny or waive action on any 401 certification for general permits and letters of permission issued by the corps under section 404 of the act.

(2) The director may impose such terms and conditions as part of a general 401 certification as are appropriate or necessary to ensure compliance with applicable laws and to ensure adequate protection of water quality and human health.

(N) General certifications. The director may issue general certifications and include such terms and conditions as are appropriate or necessary to ensure compliance with applicable laws and to ensure adequate protection of water quality and human health.

Replaces: 3745-32-04, 3745-32-05, 3745-32-06, 3745-32-07

Effective: 1/2/2017
Five Year Review (FYR) Dates: 01/02/2022
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03, 6111.30
Prior Effective Dates: 9/15/1982, 4/17/01 (Emer), 2/11/2015 (Emer.), 6/11/2015

3745-32-04 [Effective until 1/2/2017] Section 401 water quality certification applications.

(A) Filing an application with the army corps of engineers for any permit set forth in paragraphs (A)(1) to (A)(3) of rule 3745-32-02 of the Administrative Code constitutes application for a section 401 water quality certification from the Ohio EPA. If an application, in the judgment of the director, lacks information necessary or desirable to determine whether the applicant has demonstrated the criteria set forth in paragraph (A) of rule 3745-32-05 of the Administrative Code, the director shall inform the applicant in writing that review of the application will not proceed until the applicant has submitted additional information as described by the director.

(B) Any person filing an application for any other federal permit or license to conduct an activity which may result in a discharge to waters of the state must submit an application to the director for a section 401 water quality certification. If an application, in the judgment of the director, lacks information necessary or desirable to determine whether the applicant has demonstrated the criteria set forth in paragraph (A) of rule 3745-32-05 of the Administrative Code, the director shall inform the applicant in writing that review of the application will not proceed until the applicant has submitted additional information as described by the director. The director may waive the application requirement if, in the judgment of the director, the activity for which a federal permit or license is sought will not result in a discharge to the waters of the state.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-04 [Rescinded effective 1/2/2017] Section 401 water quality certification applications.

Effective: 1/2/2017
Five Year Review (FYR) Dates: 07/28/2016
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982

3745-32-05 [Effective until 1/2/2017] Criteria for decision by director.

(A) The director shall not issue a section 401 water quality certification unless the director determines that the applicant has demonstrated that the discharge of dredged or fill material to waters of the state or the creation of any obstruction or alteration in waters of the state will not do the following:

(1) Prevent or interfere with the attainment or maintenance of applicable water quality standards .

(2) Result in a violation of any applicable provision of the following sections of the Federal Water Pollution Control Act :

(a) Effluent limitations as described in section 301 .

(b) Water quality related effluent limitations as described in section 302 .

(c) Water quality standards and implementation plans as described in section 303 .

(d) National standards of performance as described in section 306 .

(e) Toxic and pretreatment effluent standards as described in section 307.

(B) Except as provided in paragraph (C) of this rule, the director shall not issue a section 401 water quality certification for any harbor or navigation maintenance activities proposing to deposit dredged material in any part of lake Erie that is within the territorial boundaries of this state or in the direct tributaries of lake Erie within this state unless the director has determined the following:

(1) The dredged material will not result in a modeled increase in "bioaccumulation" of a "bioaccumulative chemical of concern" as those terms are defined in 3745-1-02 of the Administrative Code. Dredged material found to be unsuitable for the deposit of dredged material pursuant to this paragraph shall be placed in a confined disposal facility or an upland location determined to be protective of public health and the environment.

(2) The placement of the dredged material will not violate any international treaties or interstate compacts regarding any bioaccumulative chemical of concern as defined under those treaties or compacts.

(C) The preclusions set forth in paragraph (B) of this rule shall not apply to placing the material into a confined disposal facility that is located in lake Erie or the direct tributaries or the discharge of de minimus dredged material associated with dewatering operations necessary to facilitate placement of the dredged material in a confined disposal facility or upland location.

(D) Notwithstanding an applicant's demonstration of the criteria in paragraphs (A) and (B) of this rule , the director may deny an application for a section 401 water quality certification if the director concludes that the discharge of dredged or fill material or obstructions or alterations in waters of the state will result in adverse long or short term impact on water quality.

(E) The director may impose such terms and conditions as part of a section 401 water quality certification as are appropriate or necessary to ensure compliance with the applicable laws and to ensure adequate protection of water quality.

(F) Prior to the issuance of a section 401 water quality certification or prior to, during, or after the discharge of dredged or fill material to waters of the state or the creation of any obstruction or alteration in waters of the state to ensure adequate protection of water quality, the director may require that the applicant perform various environmental quality tests including, but not limited to, chemical analyses of water, sediment or fill material, and bioassays.

[Comment: "Federal Water Pollution Control Act" (commonly referred to as the "Clean Water Act"), means the "Federal Water Pollution Control Act Amendments of 1972", 86 Stat. 886, 33 U.S.C. 1251 as amended through July 1, 2014. This act can generally be found in Ohio public libraries and the state library of Ohio, and electronically at http://www.gpo.gov/fdsys. Information and copies may be obtained by writing to: "U.S. Government Bookstore, 732 N. Capitol Street NW, Washington, DC 20401."]

Effective: 6/11/2015
Five Year Review (FYR) Dates: 09/30/2005
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982, 2/11/2015 (Emer.)

3745-32-05 [Rescinded effective 1/2/2017] Criteria for decision by director.

Effective: 1/2/2017
Five Year Review (FYR) Dates: 07/28/2016
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982, 2/11/2015 (Emer.), 6/11/2015

3745-32-06 [Effective until 1/2/2017] Revocation of section 401 water quality certification.

The director may revoke a section 401 water quality certification if he concludes at any time that any applicable laws or regulations have been or are likely to be violated.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-06 [Rescinded effective 1/2/2017] Revocation of section 401 water quality certification.

Effective: 1/2/2017
Five Year Review (FYR) Dates: 07/28/2016
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982

3745-32-07 [Effective until 1/2/2017] Procedure for decision by director.

A section 401 water quality certification shall be issued, modified, revoked, or denied and may be challenged in accordance with the provisions of the rules of procedure of the Ohio EPA, Chapter 3745-47 of the Administrative Code.

R.C. 119.032 review dates: 9/27/2002 and 09/30/2005

Promulgated Under: 119.03

Statutory Authority: 6111.03

Rule Amplifies: 6111.03

Prior Effective Dates: 9/15/1982

3745-32-07 [Rescinded effective 1/2/2017] Procedure for decision by director.

Effective: 1/2/2017
Five Year Review (FYR) Dates: 07/28/2016
Promulgated Under: 119.03
Statutory Authority: 6111.03
Rule Amplifies: 6111.03
Prior Effective Dates: 9/15/1982