[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
at http://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.
