Chapter 3745-32 | Section 401 Water Quality Certifications

Rule 3745-32-01 | Definitions.

• Effective: July 20, 2024
• Promulgated Under: 119.03

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)

(1) "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, will comply with sections 301, 302, 303, 306 and 307 of the act.

(2) "Act" means the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act).

(3) "Applicant" means any person who submits an application to obtain a 401 certification from the Ohio EPA.

(B) [Reserved.]

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

(D)

(1) "Discharge" has the same meaning as used in paragraph (16) of section 502 of the act.

(2) "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.

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

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

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

(iii) 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 land clearing, ditching, channelization, or other excavation.

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

(i) 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 necessitate a permit from the corps or applicable state.

(ii) 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.

(iii) Incidental fallback.

(3) "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.

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

(E) [Reserved.]

(F) "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.

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

(H) [Reserved.]

(I) "In-kind" means a water of the state with a similar structural and functional type to the impacted water of the state.

(J) [Reserved.]

(K) [Reserved.]

(L) "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 necessitated by the fish and wildlife coordination act and a public interest evaluation but without the publishing an individual public notice.

(M) [Reserved.]

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

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

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

(Q) [Reserved.]

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

(S) "Stream" means a water body having a channel with defined bed and banks that confine and conduct continuous or periodical flowing water. Streams with ephemeral flow that are a water of the state are subject to the requirements in sections 6111.311 to 6111.316 of the Revised Code.

(T) [Reserved.]

(U) [Reserved.]

(V) [Reserved.]

(W)

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

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

(X) [Reserved.]

(Y) [Reserved.]

(Z) [Reserved.]

(AA) Incorporation by reference. This chapter includes references to certain matter or materials. The text of the referenced materials is not included in the rules contained in this chapter. Information on the availability of the referenced materials as well as the date of, or the particular edition or version of the material is included in this rule. For materials subject to change, only the specific versions specified in this rule are referenced. Material is referenced as it exists on the effective date of this rule. Except for subsequent annual publication of existing (unmodified) Code of Federal Regulation compilations, any amendment or revision to a referenced document is not applicable unless and until this rule has been amended to specify the new dates.

(1) Availability. The materials incorporated by reference are available as follows:

(a) "Code of Federal Regulations" (CFR). Information and copies may be obtained by writing to: "U.S. government printing office, P.O. Box 979050, St. Louis, MO 63197-9000." The full text of the CFR is also available in electronic format at www.ecfr.gov/. The CFR compilations are also available for inspection and use at most public libraries and "The State Library of Ohio."

(b) "Federal Water Pollution Control Act." Information and copies may be obtained by writing to: "U.S. Government Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000." The full text of the act is also available in electronic format at https://www.govinfo.gov. A copy of the act is also available for inspection and use at most public libraries and "The State Library of Ohio."

(c) "The Rivers and Harbors Act." Information and copies may be obtained by writing to: "U.S. Government Printing Office, P.O. Box 979050, St. Louis, MO 63197-9000." The full text of the act is also available in electronic format at https://www.govinfo.gov/content/pkg/USCODE-2018-title33/pdf/USCODE-2018-title33-chap9-subchapI.pdf. A copy of the act is also available for inspection and use at most public libraries and "The State Library of Ohio."

(d) Other publications. The availability of these documents is provided in paragraph (AA)(2) of this rule. However, many of the documents are also available for inspection and copying at most public libraries and "The State Library of Ohio."

(2) Incorporated materials.

(a) 33 CFR; "Navigation and Navigable Waters" as published in the July 1, 2023 Code of Federal Regulations.

(b) 40 CFR; "Protection of Environment" as published in the July 1, 2023 Code of Federal Regulations.

(c) Federal Water Pollution Control Act; contained in 33 U.S.C. 1251-1387.; as published in the 2018 edition of the United States Code.

(d) The Rivers and Harbors Act; contained in 30 Stat. 1151, 33 U.S.C. 40; "The Rivers and Harbors Act of 1899"; as published in the 2018 edition of the the United States Code.

(e) "Guidelines for Stream Mitigation Banking and In-lieu Fee Programs in Ohio," version 1.1 (March 2016) can be found at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll11/id/6536. This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(f) "Ohio Stream Assessment Method," version 3.0 (March 2024) can be found at https://epa.ohio.gov/divisions-and-offices/surface-water/permitting/wetland-and-stream-mitigation. This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

Last updated July 22, 2024 at 8:25 AM

Supplemental Information

Authorized By: 6111.03
Amplifies: 6111.03
Five Year Review Date: 7/20/2029
Prior Effective Dates: 4/17/2001 (Emer.)

Rule 3745-32-02 | Applicability.

• Effective: July 20, 2024
• Promulgated Under: 119.03

[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 to a water of the state shall apply for and obtain a 401 certification from Ohio EPA including:

(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.

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

(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 is 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 necessary.

Last updated July 22, 2024 at 8:25 AM

Supplemental Information

Authorized By: 6111.03
Amplifies: 6111.03
Five Year Review Date: 7/20/2029

Rule 3745-32-03 | Section 401 water quality certification application requirements and procedures.

• Effective: July 20, 2024
• Promulgated Under: 119.03

[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 401 certification application is necessary 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 necessitates a 401 certification shall comply with the application procedures set forth in this rule. The director prescribes the form and 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 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." The Ohio rapid assessment method protocol is available on the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/wetland-ecology. The Ohio rapid assessment method includes 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 rules 3745-1-54 and 3745-32-04 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 need 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 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 described in paragraph (B) of this rule within ninety days after the director's receipt of the application, the director may deny the application.

(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 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 may not issue a 401 certification unless the director determines that the applicant has demonstrated that the discharge 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 may 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 do 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 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, will 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 transferred 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 expires upon the expiration of the applicable federal license or permit unless specified in the 401 certification.

(2) A 401 certification remains 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 shall 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.

Last updated July 22, 2024 at 8:25 AM

Supplemental Information

Authorized By: 6111.03
Amplifies: 6111.03, 6111.30
Five Year Review Date: 7/20/2029
Prior Effective Dates: 9/15/1982, 4/17/2001 (Emer.)

Rule 3745-32-04 | Mitigation for impacts to streams.

• Effective: August 1, 2024
• Promulgated Under: 119.03

[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 rules 3745-1-03 and 3745-1-50 of the Administrative Code.]

(A) This rule applies when establishing mitigation requirements for stream impacts that are authorized under a section 401 water quality certification in accordance with this chapter or other appropriate authorization issued by the director.

[Comment: Compensatory mitigation requirements for authorized impacts to wetlands are in rule 3745-1-54 of the Administrative Code. Compensatory mitigation requirements for authorized impacts to ephemeral streams are in sections 6111.311 to 6111.316 of the Revised Code.]

(B) Stream compensatory mitigation requirements.

(1) The compensatory mitigation type and location shall be provided in the following preferred order:

(a) At a mitigation bank, approved in accordance with 33 C.F.R. Part 332.8, with a service area including the same watershed as the location of the proposed stream impacts that provides appropriate stream mitigation credits.

(b) Through an in-lieu-fee program, approved in accordance with 33 C.F.R. Part 332.8, with a service area including the same watershed as the location of the proposed stream impacts that provides appropriate stream mitigation credits.

(c) At a permittee-responsible compensatory mitigation site located in accordance with 33 C.F.R. Part 332.3(b).

(2) Deviations from the preferred order established in paragraph (B)(1) of this rule require a demonstration of all of the following:

(a) Description of the available credits for each approved mitigation bank or in-lieu fee program with a service area including the same watershed as the location of the proposed stream impacts.

(b) Description of the costs associated with the proposed compensatory mitigation and each preceding option outlined in paragraph (B)(1) of this rule.

(c) Discussion of how the proposed compensatory mitigation will provide a greater ecological benefit than each preceding option outlined in paragraph (B)(1) of this rule.

(3) Compensatory mitigation shall be in-kind unless there is a compelling ecological reason that the compensatory mitigation should not be.

(4) Compensatory mitigation debit and credit amounts shall be calculated using the "Ohio Stream Assessment Method" or alternative stream mitigation methods, upon approval of the director, if the applicant demonstrates that the method provides an equivalent or greater ecological lift as tthe Ohio stream assessment method.

(5) A drainage area scaling factor will apply for debit and credit amounts calculated using the Ohio stream assessment method. The drainage area scaling factor is effective in a range between 0.1-10 square miles for streams with a valley slope of two per cent or less and 0.05-10 square miles for streams with a valley slope greater than two per cent.

For streams with a valley slope of two per cent or less, drainage areas below 0.1 square miles are capped at a scaling factor of 0.42. For streams with a valley slope greater than two per cent, drainage areas below 0.05 square miles are capped at a scaling factor of 0.32. For all streams with drainage area above ten square miles, the scaling factor is capped at 2.40.

Valley slope is determined by dividing the amount of elevation change that occurs over the length of the valley.

Final debits and credits are calculated using the following equation, applying the scaling factor cap amounts described above:

OSAM units x (DA^0.38) where:

OSAM units = calculated Ohio stream assessment method debits or credits.

DA = drainage area.

(6) A temporal loss multiplier of 1.1 will apply for credits purchased through an in-lieu fee program or when permittee responsible mitigation will not occur concurrently with the approved impacts.

(7) The applicant shall demonstrate that the compensatory mitigation site will be protected long term and that appropriate management measures are, or will be, in place to restrict harmful activities that may jeopardize the compensatory mitigation.

(8) Performance standards. The director will require the permittee to achieve performance standards to demonstrate the ecological success of the mitigation project in accordance with the "Guidelines for Stream Mitigation Banking and In-lieu Fee Programs in Ohio" or other performance standards acceptable to the director as determined during the review of the application.

(9) Compensatory mitigation monitoring. The director will require the permittee to conduct ecological monitoring of the compensatory mitigation project and submit annual reports detailing the results of the ecological monitoring to demonstrate progress towards compliance with the performance standards.

(a) The ecological monitoring at the compensatory mitigation site may include, but is not limited to, collection of data on the following:

(i) Hydrologic, hydraulic, and geomorphological characteristics.

(ii) Vegetation communities.

(iii) Water chemistry.

(iv) Biological communities.

(v) Conducting an assessment of the compensatory mitigation using an appropriate evaluation method.

(b) Ecological monitoring shall be conducted for a period of at least five years following construction of the compensatory mitigation. Projects with a forested component shall be monitored for at least ten years following construction of the compensatory mitigation.

(i) Upon written request, the director may waive ecological monitoring requirements for the full five or ten years if the applicant demonstrates to the satisfaction of the director that the compensatory mitigation is meeting required goals or targets.

(ii) Upon written request, the director may grant a maximum two year extension from the end of the five year or ten year monitoring period to complete outstanding compensatory mitigation obligations. Submittal of annual reports shall continue during the extension.

(iii) For permittee responsible mitigation, at the end of five years or ten years, or seven years or twelve years if an extension is approved, compensatory mitigation that does not meet required goals or targets shall be rectified through the purchase of mitigation credits at a mitigation bank or through an in-lieu-fee program, when available, in accordance with paragraph (B) of this rule. When mitigation credits are not available, permittees may propose alternate compensatory mitigation to fulfill the permit requirements for the director to consider. The director may consider reductions in the required compensatory mitigation based upon the ecological status of the original compensatory mitigation project.

Last updated August 1, 2024 at 7:54 AM

Supplemental Information

Authorized By: 6111.03, 6111.041, 6111.12, 6111.30, 6111.31
Amplifies: 6111.03, 6111.041, 6111.12, 6111.30, 6111.31
Five Year Review Date: 7/20/2029