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Water Quality Certification and Isolated Wetland Permits

Anyone who wishes to discharge dredged or fill material into the waters of the U.S., regardless of whether on private or public property, must obtain a Section 404 permit from the U.S. Army Corps of Engineers (Corps) and a Section 401 Water Quality Certification (WQC) from the state. Anyone who wishes to discharge dredged or fill material into isolated wetlands in Ohio must obtain an Isolated Wetland Permit from Ohio EPA.

The 401 Water Quality Certification and Isolated Wetland Permitting Section reviews applications for projects that propose the placement of fill or dredged material into waters of the State, including streams, lakes and wetlands. The section also reviews required mitigation from issued permits and performs wetland research.

IMPORTANT UPDATES

HOUSE BILL 175 AND EPHEMERAL STREAMS

On April 6, 2022, the Ohio General Assembly passed House Bill 175 which changed several sections of Ohio Revised Code (ORC).  The legislation changed the definition of "Waters of the State" in ORC 6111.01(H) to exclude ephemeral features that are not federally jurisdictional as determined by the US Army Corps of Engineers.  For those ephemeral features that are federally jurisdictional, ORC 6111.311 through 6111.316 establishes the best management practices (BMPs), mitigation and restoration requirements, performance standards, and monitoring and reporting requirements that can be included in the issuance of Section 401 Water Quality Certifications. The legislation is effective on July 21, 2022

Ohio EPA has created a Guidance Document and Ephemeral Stream Mitigation Calculator to aid applicants that have proposed impacts to ephemeral streams in applications for Section 401 Water Quality Certifications.

ONLINE APPLICATION SUBMISSION

It is highly recommended that applicants use the Ohio EPA eBusiness Center to prepare and submit applications for pre-application meetings, 401 water quality certifications, 401 directors authorizations, and isolated wetland permits. Hard copy applications received through the mail will take longer to be received, assigned, and reviewed. Users can create an Ohio EPA eBusiness Center account, obtain a PIN (i.e., electronic signature) within minutes, and access and submit applications. More information for submitting through the eBusiness center is available on the respective tabs below in the form of Electronic Submittal User Guides.

  • Account Creation and PIN Setup Walkthrough
  • IMPORTANT NOTE: Consultants CAN NOT PIN (electronically sign) applications on behalf of their clients. Consultants can COMPLETE the application then DELEGATE it to their client to pin and submit. Instructions for delegation are located in the User Guides within the tabs below.

Director's Authorizations

Ohio EPA may grant coverage under the general 401 WQC for the Nationwide Permits for any project that does not meet one or more of the terms and conditions of the issued general 401 WQC or where the district engineer has been granted authority to waive certain requirements. Details on the Director's Authorization process are outlined in the general 401 WQC for the Nationwide Permits.

Please be aware that stream mitigation is often required by Ohio EPA for permanent impacts.  A Director's Authorization is only an appropriate permitting mechanism when necessary mitigation is included within the conditions of the associated nationwide permit.  It is highly recommended that applicants consult with Ohio EPA to determine if stream mitigation will be required to avoid delays in the Director's Authorization process.  

The Ohio EPA Division of Surface Water has received an application for, and has begun to consider whether to issue a Director's Authorization for coverage under the 401 WQC for the Nationwide Permits for the projects listed in the table below.  To facilitate public involvement, electronic copies of the submitted application materials are available for 15 days. Anyone may submit written comments by email to epa401DAcomments@epa.ohio.gov. Please be sure to include the Ohio EPA # in the subject line of your email.

Director's Authorization Applications Available for Comment

Ohio EPA #   Description County Comments Due
228063D M&B Gearhart Farms  M&B Gearhart Farms Ross Aug 25, 2022
228020D DEL-CR91-1.85  Delaware County Engineer Delaware Aug 11, 2022

Applications Available for Comment

The Ohio EPA Division of Surface Water has received an application for, and has begun to consider whether to issue or deny, a Clean Water Act Section 401 water quality certification and/or isolated wetland permit for the projects listed in the table below. To facilitate public involvement, electronic copies of the application materials are available using the links provided in the table during the public comment period. 

Once published, copies of the public notices can be found by clicking the following link: https://ebiz.epa.ohio.gov/Notices/jsp/notice_search.jsp

Once on the Public Notices site, use these steps to navigate to the appropriate public notice:

  1. Click the circle next to "Notices "
  2. Select the appropriate "County " by clicking on the dropdown arrow
  3. Click the dropdown arrow next to Program and select "Surface Water Programs"
  4. Click the dropdown arrow next to Notice Type and select either "Notice of Receipt of 401 application" or "Notice of Receipt of Isolated Wetland Permit Application"
  5. Click the "Search" button to return the results
  6. Scroll through the list to find the appropriate Public Notice and click "View" to see the details of the public notice including the comment period end date.

Ohio EPA #

Description

County

217288W Concord Crossing  Johnstown Land Holdings, LLC Licking
227973W Sunny Farms Landfill Expansion  Brad Bashore Seneca
227820A CVNP Boston Mills North  The National Park Service Cuyahoga
227939A Tunnel Hill Reclamation Landfill Expansion  Tunnel Hill Reclamation, Inc Perry
227801A Woodlands of Snowville  Snowville Joint Ventures Cuyahoga
227686A Buckeye Yard  Buckeye XO, LLC Franklin
217658W RGLP Cargo Campus Development Area  Columbus Regional Airport Authority Franklin and Pickaway
227967A Bridge at MP B-115.19 Over Conneaut Creek Ohio  Norfolk Southern Railway Company  Ashtabula
227875W Capstone Way  ARCO Design/Build Indianapolis Montgomery
227908 CUY-Pleasant Valley Road Bridges PID 104504  ODOT Cuyahoga
227883A S.R.I. Landfill, Seep Repair  S.R.I., Inc. Montgomery
227885A
227914A
227915A
227917A
227919A
227921A
227922A
227923A
227924A
227925A
Lake Erie Shoreline Improvements Cuyahoga
227672W Andrews Ridge  GD3 Ventures Lake

Water Quality Certifications

Section 401 of the federal Clean Water Act (CWA) requires state agencies to evaluate projects that will result in the discharge of dredged or fill material into waters of the United States to determine whether the discharge will violate the States water quality standards. Any person who wishes to place dredged or fill material into wetlands, streams or lakes must apply for an individual Section 401 certification unless the project meets the Ohio EPA conditions of applicable nationwide permits.

Activities typically requiring 401 certification include stream rerouting or culverting, filling wetlands and dredging and filling in lakes. Typical projects include highway construction, marina and dock construction, shopping mall construction, strip mining operations or housing subdivisions. A Section 401 certification is required for activities that require federal permits such as a Section 404 permit, a Federal Energy Regulatory Commission (FERC) license, or a U.S. Coast Guard permit.

Pre-Application Meeting

Planning a project that will impact wetlands, streams, rivers, lakes or other regulated water resources, and anticipating how Ohio EPA will respond to your application can be difficult. In an effort to avoid delays and confusion, and ensure that Ohio's environment is protected, Ohio EPA offers pre-application coordination for all applicants who need to apply for a Section 401 Water Quality Certification or Isolated Wetland Permit. Most delays in the application review process are caused by applicants not providing all the information required by Ohio EPA. Through the pre-application coordination process, Ohio EPA representatives can help ensure you know exactly what you need before you submit your application.

A pre-application meeting is an informal and highly recommended process where you meet with an Ohio EPA 401 Coordinator to discuss a project that is in its early planning stages.

Application Materials

ORC section 6111.30 specifies what items must be submitted for a Water Quality Certification application package to be considered complete. The required components under ORC division 6111.30(A) are: 

  1. A complete 401 Water Quality Certification application form and applicable impact tables.

  2. A copy of the United States Army Corps of Engineers' jurisdictional determination letter. If no jurisdictional determination is to be issued by the Corps, the public notice or notification that the project is authorized under a general permit will fulfill this requirement;

  3. If the project impacts a wetland, a wetland characterization analysis consistent with the Ohio Rapid Assessment Method;

  4. 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;

  5. A specific and detailed mitigation plan prepared in accordance with 33 C.F.R. Part 332, OAC 3745-1-54, and ORC 6111.311 through 6111.316 (ephemeral streams) including the location and proposed real estate instrument or other mechanism for protecting the property long term;

  6. Applicable fees;

  7. Site photographs of water resources in accordance with OAC 3745-32-03(B)(e);

  8. Adequate documentation confirming that the applicant has requested comments from the Ohio Department of Natural Resources and the United States Fish & Wildlife Service regarding threatened and endangered species, including the presence or absence of critical habitat;

  9. Descriptions, schematics, and appropriate economic information of the applicant's alternatives analysis prepared in accordance with 40 C.F.R. Part 230 and 3745-1-54 for the project;

    Alternatives Analysis Guidance

  10. The applicant's investigation report of the waters of the United States in support of the 404 permit application. If no investigation report is required by the Corps, the public notice or notification that the project is to be authorized under a general permit will fulfill this requirement; and

  11. A copy of the United States Army Corps of Engineers' public notice regarding the 404 permit application. If no public notice is to be issued by the Corps, notification that the project is authorized under a general permit will fulfill this requirement.

15-Day Completeness Review

Ohio Revised Code division 6111.30(B) requires Ohio EPA to review an application within 15 business days of submission and to notify the applicant in writing whether the application is considered complete, or not. If incomplete, the letter will specify what parts of the application package are missing. If complete, the letter will specify what type of public notice is required for the proposed project. The letter will also provide the name and contact information for the application reviewer assigned to that project. This notification will be a letter that is faxed to the applicant or their designated agent. The applicant, or their agent, will be asked to acknowledge receipt of the 15-day review letter by signature and return fax.

Should the application be incomplete, the applicant has 60 days in which to provide the missing information. After 60 days, the Director may return the application and the review fee without further action. The application fee will not be refunded.

Public Notice Requirements

Division 6111.30(C) of the Ohio Revised Code places the responsibility for issuing a public notice about the application for the project with the applicant. Ohio EPA has prepared an instruction sheet to assist the applicant through this process. The instruction sheet describes the steps to be taken and coordination needed to complete this task in a timely manner.

Fees

Key provisions of the 401 Water Quality Certification fees are:

  • A person that applies for a Certification must pay an application fee of $200 at the time of application.
  • In addition to the application fee, that person must pay the following review fees:
Resource Impacted Review Fee
Wetland $500 per acre
Intermittent Stream $10 per linear foot or $200, whichever is greater
Perennial Stream $15 per linear foot or $200, whichever is greater
Lake $3 per cubic yard of dredged or fill material
  • For 401 Water Quality Certification applications, one-half of the applicable review fee is due at the time of application. The remainder of the fee shall be paid at the time the Director takes an action on the application.
  • The total fee paid shall not exceed $25,000 per application. If the applicant is a county, township, or municipal corporation in the state, the total fee paid shall not exceed $5,000 per application.
  • Fees do not apply if the applicant is a state agency or the U.S. Army Corps of Engineers.

The total fee paid shall not exceed $25,000 per application. If the applicant is a county, township, or municipal corporation in the state, the total fee paid shall not exceed $5,000 per application.

After submittal of an application through the eBusiness center, fees can be paid online using the eBusiness center, or provide a check, payable to the Treasurer of the State of Ohio, for the application fee and one half of the review fee. The balance of the review fee will be due once the Agency has taken a final action on an application. You will receive an invoice from Ohio EPA for the remaining fees that are due.

Isolated Wetland Permits

Isolated wetlands are not connected to other surface waters. For this reason they are not classified as waters of the United States by the U.S. Army Corps of Engineers. Nevertheless, they are waters of the State of Ohio and are therefore regulated by the Ohio EPA, Division of Surface Water.

How do I know if there is an isolated wetland on my project site?

The U.S. Army Corps of Engineers has responsibility for:

  • determining whether wetlands exist within a particular project site;
  • confirming the number, boundaries and acreage of those wetlands;
  • determining whether those wetlands are waters of the U.S. or "isolated."

These written findings are recorded in a final jurisdictional determination (JD) which is sent to the entity requesting the JD and to Ohio EPA. 

PLEASE NOTE: When the applicant requests, and the U.S. Army Corps of Engineers issues, a preliminary JD, all wetlands on the proposed site are assumed to be waters of the U.S. and will not be declared isolated. See the Corps Regulatory Guidance Letter on Jurisdictional Determinations.

Why does Ohio EPA regulate isolated wetlands?

Ohio EPA authority to regulate discharges of fill to isolated wetlands is provided in Ohio Revised Code 6111.02 through 6111.028.

What triggers the need for an isolated wetland permit application?

When a project proposes to place fill in an isolated wetland, an isolated wetland permit is required. Fill is defined in paragraphs (D) and (E) of Ohio Revised Code 6111.02.

Procedures to get an Isolated Wetland Permit

There are three levels of isolated permit application review as summarized in the table below. Once you have determined which level of review applies to your proposed project, click on the links in the table to get details about the application and review processes and the associated permit you can expect to get.

Wetland Category Acres of Potential Wetland Impact Public Notice Required? Mandatory Public Hearing? Ohio EPA Permit Review Period Type of Permit Type of IWP Review and Links to More Information
1 or 2 0.5 acres or less No No 30 days* General Permit Level 1
1 more than 0.5 acres Yes No 90 days* Individual Level 2 Isolated Wetland Permit Level 2
2 more than 0.5 acres but less than or equal to 3 acres          
2 more than 3 acres Yes No 180 days* Individual Level 3 Isolated Wetland Permit Level 3
3 any size Yes Yes      

 * The permit review period begins on the date when Ohio EPA sends you a letter documenting that the application is complete.

Fees

Key provisions of the Isolated Wetland Permit fees are:

  • A person that applies for a Permit must pay an application fee of $200 at the time of application.
  • In addition to the application fee, that person must pay the following review fees:

Resource Impacted

Review Fee

Wetland

$500 per acre

  • For Isolated Wetland Permit applications, the entire review fee is due at the time of application.
  • The total fee paid shall not exceed $5,200 per application.
  • Fees do not apply if the applicant is an agency or department of the state, or any county, township, or municipal corporation in the state.
  • All After-the-Fact isolated wetland projects will be assessed double the amount of the application and review fees up to a maximum of $10,000.

After submittal of an application through the eBusiness center, fees can be paid online using the eBusiness center, or provide a check, payable to the Treasurer of the State of Ohio for the application fee and the review fees.

Nationwide Permits

Nationwide Permits are a type of 404 permit issued by the U.S. Army Corps of Engineers every five years for certain projects that are similar in nature and cause minimal degradation to waters of the United States. These permits substantially expedite the permitting process. To determine if a project qualifies for Nationwide Permit coverage, applicants should review the current version of the Nationwide Permits for the State of Ohio and may contact the U.S. Army Corps of Engineers or Ohio EPA to discuss their project.

2022 Nationwide Permits  41 activities

On October 13, 2021, Ohio EPA finalized the 401 WQC for the 2022 Nationwide Permits published by the U.S. Army Corps of Engineers in the Federal Register (Volume 86, No. 245) on December 27, 2021. The 2022 Nationwide Permits are effective from February 25, 2022 through March 14, 2026.  The 2022 issuance contains those 40 activities that were not included in the 2021 issuance and 1 additional activity for a total of 41 Nationwide Permit activities.

The final 2022 Nationwide Permits for Ohio with Regional Conditions were public noticed by the U.S. Army Corps of Engineers Huntington, Buffalo, and Pittsburgh Districts on February 23, 2022.

In order to determine eligibility under the 401 WQC for the 2022 Nationwide Permits for stream impacts, applicants should use the Stream Eligibility Web Map.

2021 Nationwide Permits  16 activities

The final 2021 Nationwide Permits were published by the U.S. Army Corps of Engineers in the Federal Register (Volume 86, No. 8) on January 13, 2021. The 2021 Nationwide Permits are effective from March 15, 2021 through March 14, 2026.

The Ohio Army Corps Districts public noticed the final Nationwide Permits for Ohio with Regional Conditions on March 15, 2021. The final version of the 2021 Nationwide Permits, issued by the Army Corps, only includes Nationwide Permits for 16 activities. Questions regarding the use of the 2021 Nationwide Permits in Ohio should be directed to an appropriate Army Corps District Office.

U.S. Army Corps of Engineers Contacts

Contacts 

Kamnyev, Anna Section Manager  (614) 644-2020
Boyles, Jeff Supervisor (614) 644-2494

Central Office 

Babb, Thomas Mitigation Compliance (614) 914-4243
VACANT ODOT Projects Statewide
Hardesty, Cara 401/IWP Compliance  (614) 644-2143
Kilbourne, Andrea  Mitigation Compliance  (614) 466-6308
Lung, Joni  Rules and Special Projects  (614) 644-2152
Luzar, Jacqueline Projects in Central and Southwest Districts (614) 644-2886
VACANT Projects in Central and Southwest Districts

Northwest District Office

Barnswell, Kristopher NWDO Supervisor (419) 373-3023
Allamon, Heather Projects in Northwest District  (419) 352-8461

Northeast District Office

Bogoevski, Daniel NEDO Supervisor (330) 963-1145
Loucek, Joe Projects in Northeast District  (330) 963-1258
VACANT Projects in Northeast District

Southeast District Office 

Taulbee, Rachel SEDO Supervisor (740) 380-5433
Hewitt, Amber Mitigation Compliance (Southeast District) (740) 380-5226
VACANT Projects in Southeast District