(A) General requirements.
(1) The permittee shall
restore on the permit area streams and wetlands affected by mining operations
unless the chief approves restoration off the permit area by means of
mitigation pursuant to division (A)(25) of section 1513.16 of the Revised Code
and this rule.
(2) An applicant's
or permittee's request for restoration off the permit area pursuant to
division (A)(25) of section 1513.16 of the Revised Code and this rule,
submitted to the chief as part of an application for a permit or a revision to
a permit, shall be subject to the requirements of these rules for applications
for permits and revisions to permits.
(3) Areas off the permit
area proposed for restoration shall be in compliance with paragraph (E) of rule
1501:13-9-04 of the Administrative Code.
(B) Hydrologic and engineering
assessment. An applicant or permittee seeking approval of restoration off the
permit area pursuant to division (A)(25) of section 1513.16 of the Revised Code
and this rule shall submit a hydrologic and engineering assessment of the
affected lands to the chief, on a form provided by the chief, as part of an
application for a permit or revision to a permit. The hydrologic and
engineering assessment of the affected lands shall include, as applicable, the
following information:
(1) Identification of the
stream (in linear feet) or the wetland (in acreage) that cannot be restored on
the permit area;
(2) A detailed
explanation of why restoration of the stream or wetland on the permit area is
not possible, including the following:
(a) A description of available water sources and their potential
for restoration;
(b) A description of methods such as compaction or lining of the
streambed that have been considered and an assessment of why those methods are
not viable options to reduce infiltration and restore the stream;
(c) One or more reclamation cross sections showing that each
stream and wetland, or portion thereof, cannot be restored on the permit area.
The cross section shall include the location of the final highwall and any
aquifers;
(3) A discussion of how
the permanent loss of the quality and quantity of the stream or wetland on the
permit area will be addressed through the mitigation plan, including a
description of the pre-mining uses of the stream or wetland and how disturbance
to the hydrologic balance within the permit and adjacent areas will be
minimized and how material damage outside the permit area will be
prevented;
(4) A detailed
explanation of how the permit area will not contribute to sediment load
downstream without a defined stream; and
(5) Any other information
needed for the chief to make a determination pursuant to paragraph (E)(1) of
this rule.
(C) Proposed mitigation plan. An
applicant or permittee seeking approval of restoration off the permit area
pursuant to division (A)(25) of section 1513.16 of the Revised Code and this
rule shall submit to the chief the proposed mitigation plan and proposed
mitigation activities that the applicant or permittee intends to perform
pursuant to a permit issued under sections 401 and 404 of the "Federal
Water Pollution Control Act" as defined in section 6111.01 of the Revised
Code or an isolated wetland permit issued under Chapter 6111. of the Revised
Code or pursuant to a no-cost reclamation contract for the restoration of water
resources affected by past mining activities pursuant to section 1513.37 of the
Revised Code. The mitigation plan shall describe the mitigation activities for
the stream or wetland, or the portion of the stream or wetland, for which
restoration on the permit area is not possible and, as applicable, identify the
location where mitigation activities off the permit area are to be
constructed.
(D) Landowner notification. The applicant
or permittee shall notify the owner of record of the surface of the permit area
by certified mail or other method able to track receipt of delivery, on a form
provided by the chief, that the applicant or permittee intends to request
restoration off the permit area by means of mitigation for a stream or wetland
or a portion of a stream or wetland that cannot be restored on the portion of
the permit area owned by the owner of record. The applicant or permittee shall
submit a copy of the landowner notification to the chief as part of the
application for a permit or revision to a permit.
(E) Review by the chief.
(1) No request for
restoration off the permit area pursuant to division (A)(25) of section 1513.16
of the Revised Code and this rule shall be approved unless the application
affirmatively demonstrates, and the chief makes written determinations, on the
basis of information set forth in the application or from information otherwise
available, that is documented in the approval and made available to the
applicant, that:
(a) The hydrologic and engineering assessment submitted under
paragraph (B) of this rule demonstrates that restoration on the permit area is
not possible;
(b) The proposed mitigation plan under which mitigation
activities described in paragraph (C) of this rule will be conducted is limited
to a stream or wetland, or a portion of a stream or wetland, for which
restoration on the permit area is not possible;
(c) The mitigation activities off the permit area, including
mitigation banking, payment of in-lieu mitigation fees or other alternative
approved mitigation activities, will be performed pursuant to a permit issued
under sections 401 and 404 of the "Federal Water Pollution Control
Act" as defined in section 6111.01 of the Revised Code or an isolated
wetland permit issued under Chapter 6111. of the Revised Code or pursuant to a
no-cost reclamation contract for the restoration of water resources affected by
past mining activities pursuant to section 1513.37 of the Revised Code;
and
(d) The proposed mitigation plan and mitigation activities comply
with the standards established in section 1513.16 of the Revised Code and these
rules.
(2) The chief shall
review any comments and any other relevant information received about the
proposed restoration off the permit area.
(3) Review and approval or disapproval by
the chief of a request for restoration off the permit area pursuant to division
(A)(25) of section 1513.16 of the Revised Code and this rule is subject to the
requirements of these rules for applications for permits and revisions to
permits.
(F) Restoration off the permit
area.
(1) If the chief approves
restoration off the permit area by means of mitigation in accordance with
division (A)(25) of section 1513.16 of the Revised Code and this rule, the
permittee shall complete all mitigation construction or other activities
required by the mitigation plan in the approved permit.
(2) Release of performance
bond.
(a) If the chief approves restoration off the permit area by
means of mitigation in accordance with division (A)(25) of section 1513.16 of
the Revised Code and this rule, the chief shall release performance security
for reclamation activities on the permit area pursuant to division (F) of
section 1513.16 of the Revised Code, except that the chief shall not release
the remaining portion of performance security under division (F)(3)(c) of
section 1513.16 of the Revised Code prior to completion of construction, to the
satisfaction of the chief, of the required mitigation activities off the permit
area, as specified in the approved mitigation plan.
(b) If the approved mitigation plan includes only mitigation
activities which require no construction, such as mitigation banking or payment
of in-lieu mitigation fees or alternative mitigation approved in a permit
issued under section 401 and 404 of the "Federal Water Pollution Control
Act" as defined in section 6111.01 of the Revised Code or an isolated
wetland permit issued under Chapter 6111. of the Revised Code, the chief, upon
his or her approval of restoration off the permit area in accordance with
division (A)(25) of section 1513.16 of the Revised Code and this rule, shall
release performance security pursuant to division (F) of section 1513.16 of the
Revised Code.
