Style Definition: Heading 3,GeoHead1: Font: Trebuchet MS, WATERWAY PERMITS MANUAL 16 pt, Space After: 12 pt Deleted: CHAPTER 6 OHIO DEPARTMENT OF TRANSPORTATION OFFICE OF ENVIRONMENTAL SERVICES 1980 WEST BROAD STREET MAIL STOP 4170 COLUMBUS, OHIO 43223 (614) 466-7100
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Approved for public release. Distribution unlimited. Formatted: Font: 4 pt Formatted ... Formatted ... Waterway Permits Manual Formatted ... Formatted ... Formatted TABLE OF CONTENTS ... Formatted ... APPENDICES ONLINE ...... III Formatted ... CHAPTER 1. INTRODUCTION ...... 4 Formatted ... 1.1 INTRODUCTION TO WATERWAY PERMITS ...... 4 Formatted ... 1.2 RELEVANT ENVIRONMENTAL LAWS, DECISIONS, AND AGREEMENTS ...... 5 Formatted 1.3 ENVIRONMENTAL PERMITTING AGENCIES...... 18 ... 1.4 AQUATIC RESOURCES SUBJECT TO WATERWAY PERMITS ...... 22 Formatted ... 1.5 ODOT- OES - WATERWAY PERMITS UNIT’S (WPU) ROLE ...... 30 Formatted ... 1.6 PREREQUISITES FOR PERMIT APPLICATIONS ...... 32 Formatted ... 1.7 ODOT’S PROJECT DEVELOPMENT PROCESS (PDP) ...... 42 1.8 WATERWAY PERMITS AND THE DESIGN-BUILD PROCESS ...... 43 Formatted ... 1.9 CONSULTANT PREQUALIFICATION AND EVALUATION ...... 45 Formatted ... CHAPTER 2. TYPES OF WATERWAY PERMITS ...... 46 Formatted ... 2.1 INTRODUCTION TO TYPES OF WATERWAY PERMITS ...... 46 Formatted ... 2.2 404 NWP OR RGP NOT REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) ...... 48 Formatted ... 2.3 USACE, 404 NWP, OR RGP REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) ...... 51 2.4 OHIO EPA, 401 NWP REQUIRING NOTIFICATION ...... 55 Formatted ... 2.5 EXPIRATION OF NWPS AND RGP ...... 56 Formatted ... 2.6 USACE, 404 INDIVIDUAL PERMIT (IP) ...... 57 Formatted ... 2.7 USACE SECTION 10 PERMIT ...... 60 Formatted 2.8 USACE SECTION 408 PERMISSION ...... 62 ... 2.9 USCG SECTION 9 BRIDGE PERMIT AND CONDITIONAL APPROVAL LETTER ...... 63 Formatted ... 2.10 OHIO EPA SECTION 401 WATER QUALITY CERTIFICATION (WQC) ...... 64 Formatted ... 2.11 OHIO EPA ISOLATED WETLAND PERMIT (IWP) ...... 66 Formatted 2.12 PERMIT MODIFICATIONS ...... 68 ... 2.13 PERMIT NON-COMPLIANCE AND PERMIT VIOLATIONS ...... 69 Formatted ... CHAPTER 3. PERMIT DETERMINATION PROCESS ...... 71 Formatted ... 3.1 PERMIT DETERMINATION REQUEST (PDR) SUBMISSION ...... 71 Formatted ... 3.2 OES PERMIT DETERMINATION ...... 75 Formatted ... 3.3 SPECIAL PROVISIONS PROCESS ...... 76 Formatted ... CHAPTER 4. U.S. ARMY CORPS OF ENGINEERS (USACE) APPLICATIONS ...... 78 Formatted ... 4.1 404 NWPS AND RGPS REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) ...... 78 Formatted 4.2 USACE SECTION 404 INDIVIDUAL PERMIT (IP) ...... 83 ... 4.3 USACE SECTION 404 WAIVER REQUESTS ...... 86 Formatted ... 4.4 USACE SECTION 10 PERMITS ...... 87 Formatted ... 4.5 USACE SECTION 408 PERMISSION ...... 87 Formatted ... CHAPTER 5. OHIO ENVIRONMENTAL PROTECTION AGENCY (OHIO EPA) APPLICATIONS ...... 90 Formatted ... 5.1 APPLICATION FOR OHIO EPA SECTION 401 WATER QUALITY CERTIFICATION ...... 90 Formatted 5.2 OHIO EPA DIRECTOR’S AUTHORIZATION (DA) ...... 96 ... 5.3 OHIO EPA ISOLATED WETLAND PERMITS (IWPS) ...... 97 Formatted ... HIO UBLIC OTICE AND UBLIC EARING ROCESS 5.4 O EPA P N P H P ...... 99 Formatted ... CHAPTER 6. UNITED STATES COAST GUARD (USCG) COORDINATION ...... 101 Formatted ... 6.1 SECTION 9 BRIDGE PERMITS ...... 101 Formatted ... 6.2 PROJECTS REQUIRING A USCG CONDITIONAL APPROVAL LETTER...... 102 Formatted 6.3 NAVIGABLE WATERS OF THE UNITED STATES ...... 104 ... Formatted CHAPTER 7. SURFACE WATER MITIGATION ...... 106 ... 7.1 GENERAL DISCUSSION ...... 106 Formatted ... 7.2 ODOT PROCEDURE FOR MITIGATION ...... 109 Formatted ... 7.3 MITIGATION PLAN JUSTIFICATION ...... 115 Formatted ...
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APPENDICES ONLINE A. GLOSSARY B. PERMIT APPLICATION AND IMPACT TABLE TEMPLATES C. PERMIT APPLICATION INSTRUCTIONS AND GUIDANCE D. EXAMPLE PERMIT APPLICATIONS E. FLOWCHARTS FOR WATERWAY PERMITS F. AIDS FOR DETERMINING PROJECT IMPACTS G. NOTICE TO NAVIGATION FORMS, CHARTS, AND USCG LISTS OF NAVIGABLE WATERS H. SPECIAL PROVISION EXAMPLES I. MITIGATION MATERIALS
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CHAPTER 1. INTRODUCTION 1.1 INTRODUCTION TO WATERWAY PERMITS
The Ohio Department of Transportation (ODOT) Office of Environmental Services (OES), Field Code Changed Waterway Permits Unit (WPU) has developed this Waterway Permits Manual in order to provide clear and consistent information and guidance on the regulations that protect surface waters, the agencies that regulate surface waters, and how to obtain the appropriate approvals to impact these waters. This manual focuses on ODOT transportation projects and is presented from that scope. While this manual may be a useful tool for some private sector or other government-sponsored projects that require waterway permits, the purpose of this manual is to cover waterway permitting based on ODOT Project Development Process (PDP) for transportation-related projects.
The goals of this manual are as follows: • Streamline the waterway permitting processes. • Increase understanding of the relevant laws, regulations, policies, and procedures that govern waterway permit issues common to ODOT projects. • Provide a connection between ODOT’s PDP and the waterway permitting process. • Provide a framework for the coordination of information between agencies, ODOT, consultants, and others on waterway permit issues. • Provide guidelines for preparing waterway permit applications and wetland and stream mitigation plans in a consistent and efficient manner.
A glossary of relevant terms is located in Appendix A. In order to deliver consistent and Field Code Changed streamlined results, OES-WPU manages all aspects of surface water permitting for ODOT projects and provides the sole point of contact for these matters. A list of contact information for OES-WPU staff and useful internet resources related to permitting can be found on the Ohio Dept. of Transportation’s website. Field Code Changed
Note: The use of “waterway permits” in this manual refers to permits issued under a number of regulatory programs required to impact surface waters of the U.S. and of the State of Ohio. This manual does not discuss permits relating to waste water, stormwater, floodplains, conservancy districts, or spill containment or response.
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1.2 RELEVANT ENVIRONMENTAL LAWS, DECISIONS, AND AGREEMENTS A permit is an authorization to perform a regulated activity in a specific manner. Permits are products of environmental laws and the primary means by which regulatory agencies ensure compliance with environmental regulations.
ODOT has entered into agreements with certain regulatory agencies to expedite coordination on ODOT projects, while remaining in compliance with specific regulations. Additionally, Section 121.17 of the Ohio Revised Code (ORC) requires directors of state departments to cooperate and coordinate their operational needs amongst each other.
ODOT projects involving waterway permits abide by the following primary environmental laws, decisions, and agreements:
Clean Water Act (33 USC 1251) The Clean Water Act (CWA) is the principal federal law that protects our nation’s waters, including lakes, rivers, aquifers, wetlands, and coastal areas. Formerly referred to as the Federal Water Pollution Control Act of 1972, the law’s ultimate goal is to maintain the chemical, physical, and biological integrity of the nation’s waters. The CWA requires that states establish water quality standards and assess state water quality based on these standards. Specifically, sections 401 and 404 of the CWA pertain to the discharge of materials into surface waters, including wetlands.
Section 404 Section 404 of the CWA is jointly administered by U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (US EPA). Under Section 404 of the CWA, USACE authorizes discharge(s) of dredged or fill material into waters of the U.S. The definition of ‘waters of the U.S.’ has evolved based on multiple court cases as well as new legislation. Authorization for projects which propose to impact waters of the U.S. is dictated by the 404 permit process, which encompasses general permits and Individual Permits (IPs). General permits include Nationwide Permits (NWPs) and Regional General Permits (RGPs) that have been pre-approved for use associated with specific activities. General Permits provide relief from some of the administrative burden associated with permit processing. The USACE district, which has jurisdiction over where the activities will occur, issues the RGP. The ODOT RGP for transportation projects is discussed in Chapter 2.2 and Chapter 2.3. Field Code Changed
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Section 404(f) exempts some activities from regulation. These activities include maintenance (but not construction) of drainage ditches, transportation structures, and many ongoing farming and silviculture practices.
Section 404 (f)(1)(B) allows for the discharge of dredged or fill material for the purpose of maintenance, 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. Regulations on this maintenance exemption, which are provided in 33 CFR 323.4(a)(2), include recapture provisions that can cause exempted activities to fall back under 404 regulation. For example, the exemption does not allow any modification that changes the character, scope, or size of the original fill design. Also, any emergency reconstruction must commence within a reasonable period of time after damage occurs in order to qualify for this exemption. Finally, any discharge of dredged and/or fill material into waters of the U.S., incidental to any of the exempt activities, must have a permit if it is part of an activity that directly affects the water of the U.S. (i.e. reducing flow or altering its overall size or extent).
Currently, ODOT considers culvert lining and paving activities within the existing conduit as 404 exempt; however, fill activities ancillary to this work, such as a coffer dam or rock channel protection, are not considered exempt.
Section 401 Section 401 of the CWA is administered by Ohio Environmental Protection Agency (Ohio EPA). In Ohio, anyone (including private citizens, federal, state, and local agencies) who wishes to discharge dredged or fill material into waters of the U.S. must obtain a Section 401 Water Quality Certification (WQC) issued by Ohio EPA. The applicant must demonstrate that activities will comply with Ohio Water Quality Standards and other provisions of federal and state law and regulations regarding conventional and non- conventional pollutants, new source performance standards, and toxic pollutants. The certification process can require an anti-degradation alternatives analysis, including evaluation of multiple alternatives.
A Section 401 WQC must be granted by the State of Ohio before a Section 404 and/or Section 10 permit can be granted by USACE. Individual 404 permits are issued when project impacts exceed thresholds utilized for general permits; these permits are usually required for significant impacts. However, for most discharges that will have only
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On the state level, the Ohio EPA Section 401 WQC program is authorized by ORC Section 6111.03(P). Ohio Administrative Code (OAC) Chapter 3745-32 outlines the 401 application process and the criteria for decision by the Director of Ohio EPA, with OAC 3745-32-02 stating that a 401 WQC is required when a project must obtain a permit from USACE under Section 10 of the Rivers and Harbors Act, Section 404 of the CWA, both Sections 10 and 404, or any other federal permit or license to conduct an activity which may result in any discharge to waters of the state. OAC 3745-1, Ohio’s Water Quality Standards, (including OAC 3745-1-05, the Anti-Degradation Rule) includes application requirements and public participation procedures. OAC 3745-1-50 through 3745-1-54 describes Ohio EPA’s Wetland Water Quality Standards and discusses wetland mitigation requirements.
ODOT’s Regional General Permit (RGP) The RGP authorizes certain transportation projects pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the CWA. The RGP has three distinct sections A, B and C, which essentially mirror the 2017 NWP 14 (linear transportation projects), 2017 NWP 3 (maintenance) and 2017 NWP 13 (bank stabilization). All three sections incorporate temporary construction, access, and dewatering (NWP 33). Limitations and thresholds for the RGP are different than the NWPs. Implementation and use of the RPG is further discussed in Chapter 2.2 and Chapter 2.3. In practice, the RGP essentially takes Field Code Changed the place of ODOT’s most commonly used NWPs and provides ODOT with a more streamlined permitting process. The RGP can provide greater flexibility for authorizing routine maintenance and small linear transportation and bank stabilization projects and provides project managers with additional permitting options, which can eliminate delays and reduces administrative paperwork.
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The current RGP was issued by the USACE Huntington District on October 24, 2019 and the RGP expires October 24, 2024. Ohio EPA granted its Section 401 certification to the RGP, with applicable special conditions, on October 4, 2019.
Rivers and Harbors Act of 1899 Section 9 of the Rivers and Harbors Act states that construction of bridges or causeways performed in or over Navigable Waters of the U.S. must be authorized by the U.S. Coast Guard (USCG) through the issuance of bridge permits or permit amendments. Such bridges are regulated under Section 9 to control horizontal and vertical clearances for commercial navigation. A Section 401 Water Quality Certification or waiver is required by USCG before the agency can issue a Section 9 permit. For a list of Ohio waterways regulated under Section 9, see Chapter 6.3 of this document. Field Code Changed
Section 10 of the Rivers and Harbors Act, administered by USACE, requires a Section 10 permit or Letter of Permission for any fill activity (temporary or permanent) below the ordinary high water mark (OHWM) in a Section 10 waterway. This also includes dredging operations within Section 10 waters. Links to lists of Section 10 waters in Ohio are provided in Chapter 4.4 of this document. Using the same process and application, a Field Code Changed Section 10 permit can typically be authorized through a NWP or RGP. However, a Notice to Navigation (NTN) is typically required to be coordinated with the USACE district office as a special condition of the Section 10 permit. A NTN allows the agency to maintain the navigational integrity of waterways when an applicant is seeking to conduct certain types of work in navigation channels and certain segments of Section 10 waterways.
Section 408 of the Rivers and Harbors Act authorizes USACE to grant permission to alter, occupy, or use a USACE civil works project (i.e. federal project) if the activity will not go against public interest nor impair the usefulness of the project. All ODOT activities over or within a federal project must be coordinated with the USACE Huntington District. This include activities above OHWM that do not directly affect the navigation channel. Federal projects are typically located within Navigable Waters of the US, but can include other structures, such as flood walls and levees. Links to USACE navigation charts are located in Appendix G of this document, which illustrate the location of the waterways that are Field Code Changed considered Federal projects. Coordination for Section 408 includes submitting a Section 408 Request Form. USACE Regulatory can authorize an ODOT project with a Section 408 Permission.
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Isolated Wetland Law Ohio EPA to reviews projects impacting hydrologically-isolated wetlands under ORC 6111.021 through 6111.028 and develops two permits with three levels of review for fill activities in such waters. Hydrologically-isolated wetlands are defined in OAC 3745-1- 50(T) as those wetlands which: 1. have no surface water connection to a surface water of the state. 2. are outside of, and not contiguous to, any 100-year floodplain (as defined in ORC 1521.01). 3. have no contiguous hydric soil between the wetland and any surface water of the state.
There are two types of isolated wetland permits (IWP): General Isolated Wetland Permit: Level One Review and Individual Isolated Wetland Permit: Level Two Review and Level Three Review. A Level One Review is associated with the General Isolated Wetland Permit and is designed to be a relatively simple review process for projects with minimal impacts. Level Two and Level Three Reviews are associated with the Individual Isolated Wetland Permit and are more complicated permits for projects with a greater degree of impacts. The level of review is based on the acreage to be filled and the quality of the wetland involved. The Ohio General Permit for Filling Category 1 and Category 2 Isolated Wetlands was reauthorized on April 10th, 2017 and will expire April 9th, 2022.
National Environmental Policy Act of 1969 The National Environmental Policy Act (NEPA) requires all federal agencies and their designees to disclose and consider the environmental implications of proposed actions. Based upon the use of federal money through FHWA and the need for federal waterway permits through USACE, ODOT is required by NEPA to document the environmental impact of its transportation projects and to provide opportunity for public participation throughout project development. NEPA establishes levels of analysis that may involve a Categorical Exclusion (CE), Environmental Assessment (EA), or Environmental Impact Statement (EIS), and result in a Finding of No Significant Impact (FONSI) or Record of Decision (ROD). The NEPA process is enforced by regulations of the Council on Environmental Quality (CEQ). When waterway permits are obtained or required for a project, the permit or the requirement to obtain applicable permits are documented as environmental commitments within the final environmental document in order to detail compliance with applicable environmental laws. These permits and their conditions are then regarded as environmental commitments under NEPA. | 9
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Formatted: Normal,Treb11 On December 28, 2015 ODOT and FHWA executed a MOU for the NEPA assignment program. This means that the Federal Highway Administration (FHWA) has assigned ODOT some FHWA NEPA responsibilities for environmental review, consultation, or other actions required under federal environmental law that pertain to the review or approval of specific highway, railroad, public transportation, and multimodal projects. The assigned responsibilities are subject to the same procedural and substantive requirements as previously applied to FHWA.
Discharge of Dredged Material Mechanized land clearing, ditching, draining, and stream channelization have long been problematic under the CWA because of confusion over whether the excavation and spilling of debris associated with these activities constitutes discharge of dredged materials into wetlands or other waters of the U.S. The Tulloch Rule, issued in 1993 by US EPA and USACE, revised the definition of "discharge of dredged material" to include the incidental fallback of any excavated materials that occurs during dredging operations. A 1998 court decision, however, found that US EPA and USACE lacked authority under the CWA to regulate such activities if said activity results in only "incidental fallback" (the redeposit of small volumes of dredged material). In May 1999, US EPA and USACE issued a final rule modifying the definition of "discharge of dredged material" in response to the Court's finding and to ensure compliance with the court’s decision.
US EPA and USACE proposed further rule revisions that were finalized and implemented in April 2001 (Tulloch II). The new rule (65 Fed. Reg. 4550) clarified the types of activities that are likely to result in a discharge of dredged material subject to Section 404 of CWA. The final rule modified the definition of "discharge of dredged material" by clarifying what types of activities US EPA and USACE believe typically result in regulated discharges, based on the nature of the equipment and agency experience. The rule indicated that US EPA and USACE regard the use of mechanized earth moving equipment to conduct land clearing, ditching, channelization, in-stream mining, or other earth-moving activity in waters of the U.S. as resulting in a discharge of dredged material, unless project-specific evidence shows that the activity results in only "incidental fallback."
On December 30 2008, USACE and US EPA published a new final rule (33 CFR 323) in response to a court order that invalidated the January 17, 2001 amendments (known as “Tulloch II”) to the regulatory definition of "discharge of dredged material.” This final rule deleted language from the regulation that was invalidated by a court order. The rule
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Waterway Permits Manual outlines several examples where a discharge results in a "redeposit" subject to regulation. The rule specifically excludes "incidental fallback" as fill without defining the term, and reinstates the regulations following the May 10, 1999 amendments with one exception: the “grandfather” provision, which exempted a limited class of discharges from 404 permit requirements which was removed by Tulloch II and is not reinstated in the final rule.
As with the 1999 rule, determining when a particular redeposit of dredged material is subject to CWA jurisdiction will involve a case-by-case evaluation, consistent with the act and governing case law.
The May 10, 1999 definition of “discharge of dredged material” includes: 1. Except as provided below in paragraph (2), the term discharge of dredged material means any addition of dredged material into, including redeposit of dredged materials other than incidental fallback within, the water of the U.S. The term includes the following: i. The addition of dredged material to a specified discharge site located in waters of the U.S. 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 water of the U.S. which is incidental to any activity, including mechanized land clearing, ditching, channelization, or other excavation. 2. The term discharge of dredged material does not include the following: i. Discharges of pollutants into water of the U.S. 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 CWA, even though the extraction and deposit of such material may require a permit from USACE or applicable state. ii. Activities that involve only the cutting or removing of vegetation above ground (e.g., mowing, rotary cutting, and chain sawing) 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.
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ODOT undertakes numerous projects that involve excavation of material from waters of the U.S. Given the nuances of understanding when excavation can be considered to result in fill, all excavation activities should be carefully reviewed for compliance with the CWA under the processes discussed in this document.
Relevant Case Law The following court cases have affected the regulatory programs administered under Section 404 of the CWA, specifically related to the jurisdictional status of waters of the U.S. Although recent developments have proposed changes to the interpretation and implementation of what constitutes a water of the U.S., a review of significant court cases provides important information for understanding these recent changes to federal rules.
SWANCC Decision In January 2001, the U.S. Supreme Court decided the Solid Waste Agency of Northern Cook County (SWANCC) vs. U.S. Army Corps of Engineers case. SWANCC, a consortium of Chicago municipalities, selected an abandoned sand and gravel pit as a solid waste disposal site. The bottom of the pit contained excavation trenches that became permanent seasonal ponds and wetlands. Since the operation called for filling in some of the ponds and wetlands, SWANCC applied for a Section 404 permit from USACE. The permit was denied.
Section 404 of the CWA authorizes USACE to issue permits for the discharge of dredged or fill material into waters of the U.S. USACE defined its authority over hydrologically- isolated wetlands, such as those at the SWANCC site, through its 1986 Migratory Bird Rule, which states that Section 404 extends to intrastate waters that provide habitat for migratory birds. The SWANCC decision held that USACE exceeded its statutory authority by using the Migratory Bird Rule to assert CWA jurisdiction over isolated wetlands. The Court’s decision is strictly limited to waters that are non-navigable, isolated, and intrastate. USACE still regulates isolated wetlands that support interstate commerce, but the SWANCC decision prohibits USACE from using the Migratory Bird Rule to determine the interstate commerce connection. One impact of the SWANCC decision was that isolated wetlands were no longer protected in many states, including Ohio. To regulate isolated wetlands in Ohio, Ohio EPA proposed a 90-day emergency rule in April 2001, with House Bill 231 subsequently signed into law in July 2001 (see ORC 6111.021 through 6111.028).
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Rapanos v. United States Rapanos v. United States, 547 U.S. 715 (2006, referred to as Rapanos), was a United States Supreme Court case that challenged the CWA. Rapanos was the first major environmental case heard by the newly appointed Chief Justice John Roberts and Associate Justice Samuel Alito. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006. While five justices agreed to void rulings against the plaintiffs, who wanted to fill their wetlands to build a shopping mall and condos, the court was split over further details, with the four more conservative justices arguing in favor of a more restrictive reading of the term "Navigable Waters" than the four more liberal justices. Justice Kennedy did not fully join either position.
Carabell v. United States Army Corps of Engineers There was also a related case known as Carabell v. United States Army Corps of Engineers that was consolidated and reviewed with the Rapanos case. June Carabell sought a permit to construct condominiums on approximately 16 acres of wetlands, but the permit was denied by USACE. Carabell took the issue to the courts, arguing that the federal government did not have jurisdiction to deny the permit. After losing in the Federal District Court and the Sixth Circuit Court of Appeals, Carabell appealed to the United States Supreme Court. Both the Rapanos and Carabell cases resulted in US EPA and USACE reevaluating how jurisdiction is determined for potential waters of the U.S. Following these court cases, the agencies released a memorandum (June 6, 2007) regarding new procedures for jurisdictional determinations. The agencies followed this with a superseding memorandum (December 2, 2008) that further refined and defined new procedures for jurisdictional determinations.
Clean Water Rule (2015) Under the Obama Administration, the US EPA and the USACE published a final rule defining the scope of waters protected under the Clean Water Act, considering the statute, science, Supreme Court decisions in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. USACE (SWANCC), Rapanos v. United States (Rapanos), and the agencies' experience and technical expertise. This final rule reflected consideration of the extensive public comments received on the proposed rule. The rule was to ensure protection for the nation's public health and aquatic resources and increase CWA program predictability and consistency by clarifying the scope of “waters of the United States” protected under the Act.
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On February 28, 2017, the Trump Administration issued Executive Order EO 13778 entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" directing EPA and the USACE to review and rescind or revise the 2015 Rule. In July of 2017 the US EPA provided notice of a two-step process that would 1. Repeal the 2015 Rule and 2. Revise the definition of WOTUS.
On January 31, 2018, the US EPA and USACE finalized a rule adding an applicability date to the 2015 Rule defining “waters of the United States.” The 2015 Rule would not be applicable until February 6, 2020. In August 16, 2018 the U.S. District Court for the District of South Carolina found that the Trump administration improperly suspended the 2015 Clean Water Rule. On December 11, 2018 the US EPA and the USACE proposed a new draft definition of "waters of the United States" that clarifies federal authority under the Clean Water Act. On October 22, 2019, the US EPA and the USACE published a final rule, effective December 23, 2019, to repeal the 2015 Clean Water Rule and restore the regulation that existed prior to the 2015 Rule, namely Rapanos 2006 and Carabell 2008.
Navigable Waters Protection Rule (2020) Formatted: Underline On April 21, 2020, the US EPA and the USACE published the Navigable Waters Protection Formatted: Justified Rule to define “waters of the United States” in the Federal Register. The definition includes four categories of jurisdictional waters, provides exclusions for some water features that traditionally have not been regulated, and some new definitions. The Navigable Waters Protection Rule regulates traditional navigable waters and the core tributary systems that provide perennial or intermittent flow into them. The final rule will become effective on June 22, 2020. Once effective, it replaces the rule published on October 22, 2019.
Endangered Species Act of 1973 (ESA) The purposes of the Endangered Species Act (ESA) are to protect federally endangered and threatened species and to provide a means to conserve their ecosystems. The ESA requires all federal agencies to work towards recovery of threatened and endangered species and their habitats. The law requires that federal agencies consult with USFWS to ensure that the federal agency’s actions are not likely to jeopardize the continued existence of any endangered or threatened species, nor destroy or adversely modify critical habitat for those species. The law is administered by the Department of Interior via USFWS and through the Department of Commerce via the National Marine Fisheries Service. ODOT ensures compliance with the Act for federal aid projects by performing ecological coordination with USFWS, per relevant agreements (see ODOT’s Ecological Manual).
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Fish and Wildlife Coordination Act (16 USC 662(a)) The Fish and Wildlife Coordination Act mandates that whenever the waters or channel of a body of water are modified by a department or agency of the U.S., or any entity under federal permit, the department or agency shall first consult with USFWS and with the head of the agency exercising administration over the wildlife resources of the state (ODNR). This consultation must include where the construction will occur with emphasis placed on the conservation of wildlife resources. ODOT performs ecological coordination, in accordance with this Act, as described in ODOT’s Ecological Manual and relevant agreements.
2016 Ecological MOA This Memorandum Of Agreement (MOA) is a multi-agency agreement that was signed and executed by ODOT, ODNR, and USFWS in order to expedite coordination for NEPA Categorically Excluded projects by reducing the amount of routine data collection and paperwork. The MOA applies to projects that are considered to have minimal impacts to stream and wetland resources. Projects that will likely receive authorization under the USACE NWP Program or RGP may be authorized under this MOA. The MOA does not apply to projects that will likely require an Individual 404 permit from USACE, Individual 401 WQC from Ohio EPA, and/or an Individual Isolated Wetland Permit from Ohio EPA. Projects that do not meet the conditions of the MOA require project-specific ecological coordination with ODNR and USFWS. Ecological coordination under this MOA satisfies the coordination requirements of the Fish and Wildlife Coordination Act (16 USC 662(a)) and Section 7 of the Endangered Species Act of 1973 (16 USC 1531-1534 [refer to ODOT’s Ecological Manual for further information]).
Coastal Zone Management Act of 1972 The Coastal Zone Management Act (CZMA) is a federal law that requires all federal actions that are likely to affect any land or water use or natural resource of the coastal area to be consistent with the state's coastal management program. Federal consistency provisions in the CZMA are designed to bring federal actions into compliance with the Ohio Coastal Management Program. The CZMA authorizes the Coastal Zone Management Program, a state-federal partnership administered by the National Oceanic and Atmospheric Administration (NOAA), to sustain coastal communities, coastal ecosystems, and improve government efficiency.
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Ohio Coastal Management Law of 1988 The Coastal Management Law of 1988 requires ODNR to implement the Ohio Coastal Management Program (OCMP) in cooperation with other state agencies and local governments. The Coastal Management Act mandates cooperation of other state agencies to carry out the program. OCMP implements the federal consistency provisions of CZMA. The designated coastal zone management area includes portions of the nine Ohio counties that border Lake Erie. The ODOT Ecological Manual provides the process for obtaining coastal consistency. Waterway permits cannot be issued for a project until that project has obtained coastal zone consistency.
As a part of USACE’s 404 NWPs, ODNR must complete a review of the NWP Program to determine whether the NWPs are consistent with OCMP. ODNR concurred with USACE’s consistency determination for the NWPs and RGP with some additional special conditions for some of the permits (provided all state permits, licenses, leases, and approvals are obtained for the project). See Chapter 1.6 for a detailed discussion on the CZM, NWPs, and RGPs.
Wild & Scenic Rivers Act The Wild & Scenic Rivers Act is a federal law that mandates certain rivers of the nation to possess outstanding scenic, recreational, geological, fish and wildlife, historic, cultural, or other similar values. These rivers shall be preserved in free-flowing condition, and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. Projects that propose to place fill in these resources require, at a minimum, pre-construction notification to USACE. In Ohio, there are a total of 212.9 miles of river designated under this Act, including portions of Big and Little Darby Creeks, Little Beaver Creek, and the Little Miami River.
Ohio Wild, Scenic, and Recreational River Act The Ohio Wild, Scenic, and Recreational River Act led to the creation of Ohio’s state scenic rivers system, which is administered by ODNR-Division of Watercraft. ORC Section 1547.82 states the following:
“…no state department, state agency, or political subdivision shall build or enlarge any highway, road, or structure or modify or cause the modification of the channel of any watercourse within a wild, scenic, or recreational river area outside the limits of a municipal corporation without first having obtained approval of the plans for the highway, road, or structure or channel modification from the director of natural | 16
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resources or his representative. The court of common pleas having jurisdiction, upon petition by the director, shall enjoin work on any highway, road, or structure of channel modification for which such approval has not been obtained.”
Further clarification of ODNR jurisdictional boundaries to administer Section 1547.82 can be found in ORC Section 1547.81. Projects that propose to place fill in these resources require, at a minimum, pre-construction notification to USACE. A map of Ohio designated scenic rivers can be found here. It is important to note that ODNR’s interpretation of what constitutes a “channel” for the purposes of the Ohio Wild, Scenic, and Recreational River Act may not necessarily align with USACE’s limit of jurisdiction (area below the OHWM).
Scenic Rivers MOA This MOA is between the Ohio Department of Transportation and the Ohio Department of Natural Resources (Division of Watercraft) for Project Coordination on Ohio’s State Wild, Scenic and Recreational Rivers. It is referred to as the “Scenic River MOA,” and establishes the responsibilities of ODNR and ODOT in coordinating intrastate review of projects within 1,000 feet of a state-designated scenic river. The agreement facilitates and enhances coordination efforts by identifying the ODOT District Environmental Coordinator and the ODNR Regional Scenic River Manager as their respective agency points of contact for coordination.
National Flood Insurance Act, Flood Disaster Protection Act, and National Flood Insurance Reform Act In 1968, Congress established the National Flood Insurance Program (NFIP) as part of the National Flood Insurance Act. This program is administered by the Federal Emergency Management Agency (FEMA). The purpose of the NFIP is to enable property owners in participating communities to purchase flood insurance. The program was designed to provide relief to flood victims and lower the cost of federal disaster relief. The NFIP was broadened in 1973 by the Flood Disaster Protection Act and further modified in 1994 by the National Flood Insurance Reform Act. See Chapter 1.6 for further information regarding Floodplain Coordination. Formatted: Font color: Auto Regional General Permit MOA Formatted: Normal,Treb11
In conjunction with ODOT’s RGP, the USACE, USFWS, and ODOT developed and entered Deleted: ¶ into a Memorandum of Agreement allowing ODOT to make federal species effect
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Waterway Permits Manual determinations for 100% state-funded projects. Per this MOA, all signatories agreed that ODOT’s current process to comply with Section 7 of the ESA fully satisfies the requirements of the ESA for both federal and state funded projects. This agreement significantly reduces the amount of notifying projects, which would otherwise require project-specific authorization from the USACE when the project might affect a federal species or their habitat and a Water of the U.S. will be impacted. The only instance requiring notification to the USACE under this MOA is when a project’s effect determination is may affect and likely to adversely affect and is 100% state-funded.
1.3 ENVIRONMENTAL PERMITTING AGENCIES United States Army Corps of Engineers (USACE) Under authority of Section 404 of the CWA and Section 10 of the Rivers and Harbors Act, USACE administers the federal permitting program related to dredge and fill activities within waters of the U.S. USACE has been involved in regulating dredge and fill activities in the nation’s waters since 1899. As a result of several laws and judicial decisions in the 1960s and 1970s, the regulatory authority of the agency evolved from one that focused primarily on navigation (Section 10 of the Rivers and Harbors Act) to one that considers an array of public interest factors related to activities regulated under Section 404 of the CWA. USACE has jurisdiction over all waters of the United States. In general, USACE’s jurisdiction occurs at or below the Ordinary High Water Mark (OHWM) or at the wetland/upland boundary.
The Section 404 permitting program regulates the discharge of dredged or fill material into waters of the U.S. and is administrated by USACE. Responsibilities of the program include: conducting jurisdictional determinations (including isolated vs. non-isolated wetland determinations); making IP decisions; verifying projects’ coverage under NWP conditions; developing policy and guidance; reviewing compensatory mitigation projects required by Section 404 permits; and enforcing Section 404 conditions. In evaluating 404 permit applications, USACE must follow the 404(b)(1) guidelines developed by US EPA.
Permits required by Section 10 of the Rivers and Harbors Act are administered by USACE. USACE reviews applications for projects involving any fill activity (temporary or permanent) below the OHWM in a Section 10 waterway. This includes dredging operations within the Section 10 limits that result in discharges greater than incidental fallback. USACE also ensures the integrity of navigation through issuing Notice to Navigation (NTN) to mariners. For any project in Section 10 waters shown on USACE
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Waterway Permits Manual navigation charts, USACE requires that a NTN, two weeks prior to the start of work, is submitted to the appropriate USACE district for distribution to entities with navigational interests in that waterway.
Permits and authorizations required by Section 408 of the Rivers and Harbors Act are administered by the USACE Huntington District. USACE reviews requests to alter a federal project for all work above and below the OHWM of a navigation channel within a USACE civil works project (also known as federal projects). USACE Huntington District will authorize projects with a Section 408 Permission. Federal projects are indicated on the USACE Navigation Charts.
There are three USACE Districts with jurisdiction in Ohio: Buffalo District (Lake Erie basin), Pittsburgh District (Mahoning River basin, some Ohio River tributaries), and the Huntington District (Muskingum, Hocking, Scioto, the majority of Ohio River tributaries, and Little and Great Miami river basins). However, the Huntington District is the lead USACE district in Ohio and reviews all ODOT projects through a field office located in Columbus, Ohio. This office is referred to as the Ohio Regulatory Transportation Office (ORTO). ORTO works exclusively on 404 permits, 404 compliance, jurisdictional determinations, Section 10 permits, and mitigation review for all ODOT-Let, ODOT-Let Local Public Agency (LPA), and state-funded highway operations projects statewide regardless of USACE district boundaries. The ORTO is also responsible for streamlining initiatives such as working with ODOT on RGPs, process improvements, and guidance documents. Note: a fourth USACE District, Louisville District, is located in Ohio but only reviews and approves Section 408 Permissions and Section 10 permits. ORTO is the lead for all other waterway permit actions.
For local let projects with federal funds that go through ODOT’s NEPA process, the LPA has the option of utilizing ODOT’s waterway permit process, which includes review and processing applications through ORTO. LPAs that choose not to utilize ODOT’s permit process must coordinate with the appropriate USACE office and procure permits on their own. For more information about ODOT’s waterway permit process for LPAs, see Waterway Permitting Guidance for LPAs on ODOT’s Waterway Permits website. Field Code Changed
The USACE Huntington District is the lead district in Ohio for all applicants. For ODOT projects, Huntington District Headquarters manages all non-compliance and CWA violations and not the ORTO.
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Ohio Environmental Protection Agency (Ohio EPA) Environmental Permitting Section 401 of the federal CWA requires state Agencies Overview agencies to evaluate projects that will result in the discharge of dredged or fill material USACE – administers Section 404 of into waters of the U.S. to determine whether the Clean Water Act and Section 10 of the River and Harbors Act, which the discharge will violate the state’s water regulates dredge and fill activities quality standards. Any person who wishes to within waters of the U.S. and Section place dredged or fill material into wetlands, 10 waterways, respectively. USACE streams, or lakes must apply for an Individual also administers Section 408 of the Section 401 WQC unless the project meets the Rivers and Harbors Act, which Ohio EPA conditions of the applicable regulates all work within a USACE Nationwide Permits. Ohio EPA’s civil works project. 401/Wetland Section is responsible for reviewing applications and issuing 401 Water Ohio EPA – administers the Water Quality Certifications for projects that impact Quality Certification program under waters of the U.S., including streams, lakes, Section 401 of the Clean Water Act and the isolated wetland program under wetlands, and jurisdictional ditches. Ohio Ohio’s isolated wetland law (ORC EPA reviews the Section 404 NWPs and the 6111). RGP issued by USACE and grants Section 401
WQC to those permits. These 401 WQC USCG – administers Section 9 of the conditions are included within the NWPs and Rivers and Harbors Act by issuing RGP as additional requirements that must be bridge permits for activities over or in met by the permittee. Navigable Waterways.
House Bill 231, passed in response to the US EPA – conducts administrative SWANCC decision, established a law and and scientific oversight of the Section 404 program under the Clean Water process for Ohio EPA to regulate and review Act; retains ability to comment on and projects impacting hydrologically isolated veto 404 permits; reviews wetlands. Three levels of permitting were Environmental Assessments and created for fill activities in such waters. For Environmental Impact Statements more information on Isolated Wetland under NEPA. permitting, see Chapter 2.11. Field Code Changed
Ohio EPA has also developed numerous methodologies for evaluating the biological and ecological integrity of streams and wetlands within the state. These assessments, including the Ohio Rapid Assessment Method for Wetlands v. 5.0 (ORAM), and the
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Headwater Habitat Evaluation Index (HHEI), Headwater Macroinvertebrate Field Evaluation Index (HMFEI), and Qualitative Habitat Evaluation Index (QHEI) for streams are used to assign quality classifications to aquatic resources. These classifications are regularly utilized to determine the level of compensatory mitigation that may be needed for impacts to waters of the U.S. See Chapter 7 for more information on compensatory Field Code Changed mitigation.
U.S. Coast Guard (USCG) Under Section 9 of the Rivers and Harbors Act, USCG regulates activities in or over Navigable Waters. USCG has the authority to require a bridge permit and can issue or deny bridge permits or permit amendments for projects involving construction of bridges or causeways installed in or over Navigable Waters. Section 9 Bridge Permits are primarily utilized to control horizontal and vertical clearances for commercial navigation in waters designated as Navigable Waters. USCG also reviews demolition plans for bridge deconstruction projects over Section 9 waters to ensure safety and maintenance of river traffic before, during, and after a bridge is removed.
USCG districts are based on large watersheds. Most of Ohio lies within the 8th Coast Guard District, which is headquartered in St. Louis, Missouri. The northern portion of Ohio above the 41st parallel is under the jurisdiction of the 9th Coast Guard District headquartered in Cleveland.
U.S. Environmental Protection Agency (US EPA) Section 404 of the CWA allows US EPA to: review and comment on Individual 404 permit applications; evaluate specific cases; determine scope of geographic jurisdiction; approve and oversee state assumption of the 404 program; jointly determine jurisdiction of certain resources with the USACE; and identify activities that are exempt from regulation under Section 404. Using the Section 404(b)(1) guidelines, US EPA develops and interprets the environmental criteria used by USACE in evaluating 404 permit applications. US EPA can also veto 404 permit decisions by USACE and may take enforcement action against unauthorized activities. In addition to its roles within the waterway permitting process, US EPA also reviews Environmental Assessments and Environmental Impact Statements under NEPA.
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1.4 AQUATIC RESOURCES SUBJECT TO WATERWAY PERMITS Under the CWA, USACE has authority to regulate waters of the U.S. Waters of the U.S. include all interstate waters such as lakes, rivers, streams, jurisdictional ditches, and non- isolated wetlands. Waters of the U.S. also include Navigable Waters of the U.S. A detailed definition of waters of the U.S. and further explanation of the jurisdictional limits of streams, lakes, and wetlands can be found in 33 CFR 328.
The current definition of waters of the U.S., which encompasses aquatic resources regulated by the federal government, has a long and complex regulatory and legal history. In May 2015, US EPA and USACE established a new rule that provides a revised definition Field Code Changed of these waters. The agencies based this rule on a comprehensive review of available science related to the interconnected nature of the nation’s surface waters.
Federal courts placed a stay on this revised definition on October 9 2015, preventing USACE and US EPA from adopting the new waters of the U.S. rule while it is in review. In August 2018, the U.S. District Court of South Carolina found that the Trump administration improperly suspended the rule, and the court set aside suspension nationwide, allowing the rule to take effect in 22 states, including Ohio.
On October 22, 2019, the US EPA and the USACE published a final rule, effective December 23, 2019, to repeal the 2015 Clean Water Rule and restore the regulation that existed prior to the 2015 Rule.
To officially determine whether a given body of water is subject to regulation as waters of the U.S., USACE performs a jurisdictional determination (JD). A JD typically consists of a site survey and/or document review that precisely identifies the limits of water resources located on a project site that are under federal jurisdiction or regulation. The JD process identifies wetlands, streams, ditches, lakes, and similar areas that fall under CWA jurisdiction. ODOT projects often include multiple types of aquatic resources that can trigger multiple regulatory requirements involving several agencies. This section will briefly discuss the jurisdictional limits and regulatory requirements of specific aquatic resources as they relate to ODOT projects.
Streams Ordinary High Water Mark
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Ordinary High Water Mark Identification Manual
ODOT has developed an OHWM Identification Manual to assist surveyors, ESR data collectors, local and government project sponsors and others with the field identification of the regulatory jurisdictional boundaries of aquatic resources.
This guidance document is available internally for ODOT access. External access is available upon request.
To request a copy of the OHWM Identification Manual contact ODOT-OES
The USACE regulatory jurisdictional limit on streams and other bodies of water begins at the elevation known as the ordinary high water mark (OHWM). OHWM is defined in 33 CFR 328.3(e) as: “That line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”
The frequency and duration at which water must be present to develop an OHWM has not been established for the USACE regulatory program. To determine if an OHWM is present, USACE evaluates each situation on a case-by-case basis using professional judgment and criteria listed in 33 CFR 328.3(e). USACE has also issued a Regulatory Field Code Changed Guidance Letter on determining the OHWM.
Perennial, Intermittent, and Ephemeral Streams Regulatory requirements may vary based on the flow regime in a stream. Flow regime can be characterized as perennial, intermittent, or ephemeral. The following hydrological terms are used in 404/401 permitting to describe the flow regime in a stream channel: • Perennial Stream – A stream that has flowing water year-round during a typical year. The water table is located above the streambed for most of the year. Groundwater is the primary source of water for stream flow. Runoff from rainfall is a supplemental source of water for stream flow. • Intermittent Stream – A stream that has flowing water during certain times of the year, when groundwater provides for stream flow. During dry periods,
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intermittent streams may not have flowing water. Precipitation is a supplemental source of water for stream flow. An intermittent stream is ordinarily dry for more than three months per year. • Ephemeral Stream – A stream with flowing water only during, and for a short duration after, precipitation events in a typical year. Ephemeral stream beds are located above the water table year-round. Groundwater is not a source of water for the stream. Runoff from rainfall is the primary source of water for stream flow.
Aquatic Life Use Designations Ohio is one of only a few states that has incorporated aquatic life use designations into its water quality standards. These use designations, listed in OAC 3745-1, are based on three biological indices that measure the populations and diversity of fish and macroinvertebrates living in a stream. Essentially, a waterway’s biological diversity and/or sensitivity determines the quality it is assigned. Examples of aquatic life use designations include the following: Modified Warmwater Habitat (streams with extensive and irretrievable physical habitat modifications, such as channelization, impoundment, or acid mine drainage); Warmwater Habitat (the typical warmwater assemblage of aquatic organisms); and Exceptional Warmwater Habitat (waters that support unusual and exceptional assemblages of aquatic organisms). Refer to ODOT’s Ecological Manual for further information on streams. Deleted: Section 2.2.1.1 Deleted: Other use designation categories that can have permitting implications include Water Supply, Recreation, and State Resource Water. Water Supply use designations include Public Water Supply, Agricultural Water Supply, and Industrial Water Supply. Recreation use designations are Bathing Waters, Primary Contact Recreation, and Secondary Contact Recreation. A State Resource Water is a designation of High Quality Waters described in OAC 3745-1-05(A)(10), which includes Superior High Quality Water, Outstanding Resource Water, and Outstanding High Quality Water. Impacts to these waters are prohibited under most NWPs/RGP, with NWP 3 and RGP B as exceptions to this limitation. The use designation of a water proposed to be impacted should always be investigated to ensure impacts to these resources are not prohibited or restricted, as this designation can have impacts on the permit and therefore project schedule.
OAC 3745-1-01 requires all water bodies to have use designations. Existing use designations (defined in OAC 3745-1-07) and the level of water quality necessary to protect existing uses shall be maintained and protected. There may be no degradation of water quality that results in either a violation of the applicable water quality criteria for
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Waterway Permits Manual the designated uses, unless authorized by a water quality standard variance issued in accordance with OAC 3745-33-07, or the elimination or substantial impairment of existing uses. The Director of Ohio EPA shall, pursuant to paragraph (A)(6) of OAC 3745- 1-07, prohibit increased concentrations of specific regulated pollutants that are incompatible with the attainment or restoration of the designated use. Existing wetland uses, as defined in OAC 3745-1-53, shall be maintained and protected in accordance with OAC 3745-1-50 to 3745-1-54.
Current stream use designations in Ohio are inadequate to classify small headwater streams, which are the most abundant stream type in Ohio. Ohio EPA has developed procedures to evaluate the quality of Primary Headwater Habitat Streams which have drainage areas of less than one square mile. ODOT uses these tools to assign preliminary use designations to headwater streams. Future Ohio EPA rules will determine how headwater streams will be regulated in Ohio. Formatted: Normal,Treb11 Stream Eligibility Determination Process In addition to the OHWM, flow regime, and aquatic life use designations, the Ohio EPA’s stream eligibility web map is a tool used to determine the appropriate level of permitting. With the issuance of the 2017 nationwide permits by USACE, Ohio EPA introduced additional criteria to determine if a project is eligible for nationwide permit 401 certification. This new nationwide permit eligibility process is outlined in the 401 certifications of the 2017 NWP in Appendix C. Eligibility will be determined for each single and complete project based on the web map managed by Ohio EPA. The map spatially defines eligibility for coverage under NWP and will result in three potential outcomes. • Eligible- If all impacted streams within the project area are located outside of the map shading the project is eligible for a NWP. No additional information is needed. • Possibly eligible- If any impacted stream within the project area falls within the yellow shading on the map, the project is possibly eligible and additional information is needed. Additional information includes collect pH values and perform a QHEI or a HHEI. See the Appendix C flow chart located in the NWP. Once the additional information is collected the project will be either eligible or ineligible for a NWP. • Ineligible- If any impacted stream within the project area fall within the purple shading on the map, the project is ineligible for a NWP and an individual 401 WQC or Director’s Authorization must be obtained. See Chapter 5.2 of this manual for Field Code Changed more information on the Director’s Authorization process.
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To determine the appropriate outcome for your project, the project boundary must be overlaid on the web map or the geographic information can be downloaded into a software program. This stream eligibility determination projects applies to NWPs 4, 6, 7, 12, 13, 14, 15, 16, 18, 22, 23, 25, 29, 30, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 45, 51, 53, and 54. NWP 3 is exempt from the Ohio EPA stream eligibility process, nor does it apply to the current 2019 RGP.
Wetlands An area is considered to be a wetland if it has the appropriate hydrology, soils, and vegetation to meet wetland criteria as defined in the 1987 USACE Wetland Delineation Manual and applicable Regional Supplements. Wetlands generally include swamps, marshes, bogs, wet meadows, and similar areas. The identification and extent of any given wetland area must be delineated by a wetland scientist. See ODOT’s Ecological Manual Deleted: Section 2.2.1.2 of the Ecological Manual for more information on wetland delineations. Formatted: Not Highlight
Wetlands are waters of the U.S. and regulated by USACE and Ohio EPA through Sections 404 and 401 of the CWA. In order to determine if a wetland is under the jurisdiction of USACE or Ohio EPA, USACE makes a jurisdictional determination (JD) to officially assess a site for the presence or absence of a wetland, identify the wetland boundaries, and determine if the wetland is jurisdictional or isolated. Isolated wetlands are regulated by Ohio EPA’s Isolated Wetland Permit Program (ORC 6111). Jurisdictional wetlands are regulated by both USACE’s 404 Permit Program and Ohio EPA 401 Water Quality Certification Program, with USACE acting as the lead regulatory agency.
Section 401 and 404 of the CWA requires the assessment of the function and quality of wetlands in order to determine whether to permit the destruction, alteration, or degradation of a wetland, and to determine the appropriate level of mitigation that should be required. Wetland quality and vegetation community (forested vs. non-forested) are significant factors to consider during the waterway permitting process; they both play a major role in determining the appropriate level of mitigation that will be required to compensate for the loss of wetland habitat.
In Ohio, definitions of wetland quality are provided in OAC 3745-1-54 (c)(1). • Category 1 wetlands support minimal wildlife habitat, and minimal hydrological and recreational functions as determined by an appropriate wetland evaluation methodology acceptable to the director of Ohio EPA. Wetlands assigned to
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category 1 do not provide critical habitat for threatened, or endangered species, or contain rare, threatened, or endangered species. • Category 2 wetlands may include but are not limited to: wetlands dominated by native species but generally without the presence of, or habitat for, rare, threatened or endangered species; and wetlands which are degraded but have a reasonable potential for re-establishing lost wetland functions. • Category 3 wetlands may include wetlands which contain or provide habitat for threatened or endangered species; high-quality forested wetlands, including old growth forested wetlands and mature forested riparian wetlands; vernal pools; and wetlands which are scarce regionally and/or statewide (i.e. bogs and fens).
Refer to ODOT’s Ecological Manual for further information on wetlands and assessment Deleted: Section 2.2.1.2 methodology utilized to determine wetland quality and category. Deleted: Formatted: Highlight Other Aquatic Resources Navigable Waters As described in 33 CFR 329, Navigable Waters of the U.S. are waters of the U.S. that are presently used, have been used in the past, or may be susceptible to use in transporting interstate or foreign commerce. Once USACE or USCG determines that a waterbody is navigable, the determination of navigability cannot be removed by subsequent actions or events that would eliminate or impede the waterbody’s navigable capacity. Navigable Waters of the U.S., including ponds, lakes, ditches, reservoirs, and shipping channels, are subject to permits required for certain activities pursuant to Section 9, Section 10, and/or Section 408 of the Rivers and Harbors Act of 1899. Links to lists of Section 10 and Section 9 waters in Ohio are provided in Chapter 4.4 of this document. Links to the Navigation Field Code Changed Charts (which include the civil works projects) are located in Appendix G. Field Code Changed
Open Water Areas of open water can include parts of streams, ponds, or lakes where an OHWM is present and where vegetation is either non-emergent, sparse, or absent. While both wetlands and open waters are considered waters of the U.S., they may be treated differently by USACE for permitting and mitigation purposes. Note: ponds, lakes, and reservoirs are subject to waterway permits. Refer to ODOT’s Ecological Manual for further Deleted: Section 2.2.1.4 information on these resources. Deleted:
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Ditches Ditches are long, narrow, man-made channels typically constructed for the purposes of providing drainage or irrigation. ODOT projects will commonly encounter ditches constructed along an existing roadway, or intersect ditches constructed through agricultural fields and other land uses. While some ditches may be considered jurisdictional waters of the U.S., either as jurisdictional captured streams or jurisdictional ditches, a majority of ditches found within ODOT project study areas will likely be considered non-jurisdictional ditches, or in some circumstances, non-jurisdictional conveyances; these ditches are not subject to CWA regulations.
Ditch Descriptions The common meaning for the term “ditch” can encompass water conveyances that range from grassy swales to captured streams. All ditches possess a constructed defined channel and convey water for at least a minimal period of time. In Ohio, most ditches function to provide drainage from an area (roadway, agricultural field, or residential area) during and shortly after a rain event; however, ditches may also have been constructed to provide irrigation to an area.
Providing and maintaining adequate roadway drainage is an important aspect of roadway design and construction. However, for the purposes of determining ecological impacts and obtaining the appropriate waterway permits, ODOT is also concerned with the potentially jurisdictional nature of existing ditches. The following terms and descriptions, taken primarily from the waters of the U.S. rule, describe the types of ditches that can be encountered within an ODOT project study area. • Non-jurisdictional ditch – These constructed features function to drain the landscape but are not RPW and do not possess an OHWM. In addition, these ditches do not possess a captured stream and were not constructed in a hydric soil unit for the purpose of draining a wetland at the time of construction. Typical examples of these types of ditches range from grassy swales to ditches with sufficient hydrology to become fully vegetated with hydrophytes (fully vegetated ditches are considered to be lacking an OHWM). While these ditches are not considered jurisdictional waters of the U.S., they can occasionally act as a non- jurisdictional conveyance for an abutting or adjacent wetland. Any construction or maintenance activities involving these non-jurisdictional ditches are exempt from 404 regulations and currently do not need to be addressed under waterway permits.
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• Jurisdictional ditch – These features are constructed entirely on roadway right- of-way and function to drain the roadway and adjacent landscape. Jurisdictional roadway ditches are RPWs with an OHWM (not fully vegetated) or were constructed in a hydric soil unit for the purpose of draining a wetland at the time of construction. The maintenance (restoration to the original configuration) of these drainage ditches is exempt from regulation (as specified in 33 CFR 323.4(a)(3)), however, projects involving impacts to these ditches in the form of widening, deepening, or relocation must be authorized through the waterway permitting process. • Captured stream – These ditches (possessing a defined channel and an OHWM) often originate outside of the roadway right-of-way and flow into the right-of-way, thus becoming captured within the roadway ditch. Secondary source information, including soil surveys and topographic mapping, can be used to determine the presence of streams that have been excavated or relocated into a ditch. These streams often appear as a “blue line” on USGS 7.5-minute topographic mapping. Some of these streams are named. Caution should be used when referencing this information, however, since many of the smaller “blue line” drainage ditches and drainage flow lines on soil survey mapping do not possess an OHWM in the field and would not be considered to be a tributary. Once it has been established that a tributary has been relocated or excavated within the roadway ditch, the ditch should be considered a tributary regardless of whether it possesses an OHWM. Small streams captured in the roadway ditch system often lose their OHWM due to maintenance or may become fully vegetated due to a wide configuration.
In addition to non-jurisdictional and jurisdictional ditches, the following jurisdictional waters can also be found within or adjacent to the roadway ditch system. • Wetland – Roadway ditches can occasionally form wetlands due to a lack of maintenance (aggraded ditch profiles or clogged culverts) or by their design (such as a fade-away ditch line). In these circumstances, flow through the ditch has become impeded in such a way that it results in the formation of a jurisdictional wetland. For this characterization to apply to a site, the area of the wetland boundary must extend more than an insignificant amount beyond the configuration of the ditch. Portions of the ditch abutting the wetland should be delineated as part of the wetland. Wetlands formed in this way should be characterized and assessed as wetlands rather than ditches. Sections of ditch flowing into or out of the wetland area should be separately characterized to determine if they are potentially jurisdictional or not.
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• Petition ditch – The term petition ditch refers to historically channelized watercourses that were constructed or improved in accordance with Ohio’s petition ditch laws. Referred to as “petitioned ditches,” these waterways are often modified streams, with clearly defined channels and OHWMs. Petitioned ditches can be found across the state, but are most commonly encountered in northwest Ohio, where ditching was necessary to drain the Great Black Swamp for agriculture. While petitioned ditches may be subject to an abbreviated antidegradation review by Ohio EPA when being maintained or improved under the ditch laws, this abbreviated review does not apply to impacts to petitioned ditches that are not implemented in accordance with the ditch laws (such as a roadway project). Petitioned ditches encountered within an ODOT project study area should be individually evaluated to determine if they meet the characteristics of a stream, wetland, or ditch, regardless of the “petition ditch” designation.
A flowchart in ODOT’s Ecological Manual has been developed to aid in characterizing Deleted: Section 2.2.1.3 roadside ditches on ODOT projects. The flowchart was developed based on guidance Deleted: provided by USACE Huntington District and past experiences on ODOT projects. The guidance is only intended for use in characterizing and documenting roadway ditches within ODOT project study areas. In all cases, USACE will make the final determination as to whether a ditch is considered a jurisdictional water of the U.S.
OES Stream and Jurisdictional Ditch Clean-Out Guidance
OES Guidance for In-water Work with no Temporary Fill (including Stream and Field Code Changed Jurisdictional Ditch Cleanout) is found within ODOT’s internal Highway Operations Environmental checklist summarizes the limitations for clean-out activities in streams and jurisdictional ditches. Most simple debris removal projects should not require coordination with the resource agencies. However, before any clean-out activity occurs, the proposed work should be evaluated against the established limitations and conditions.
1.5 ODOT- OES - WATERWAY PERMITS UNIT’S (WPU) ROLE OES is responsible for guiding transportation projects through ODOT's PDP by providing interdisciplinary review and ensuring compliance with all local, state, and federal environmental laws and regulations. OES develops policy and direction for integrating environmental decisions into ODOT projects. OES staff also educates and trains ODOT and agency personnel, consultants, and the public on the State and Federal government's environmental requirements as they pertain to transportation. OES is comprised of two
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Waterway Permits Manual sections: Environmental Policy/Cultural Resources; and Ecological/Waterway Permits/Environmental Site Assessment.
The WPU reviews ODOT projects that impact aquatic resources subject to waterway permit requirements and determines and carries projects to the appropriate level of permitting based on the type of work and quantity of proposed impacts. WPU is responsible for review (and occasionally as resources allow, preparation of) of all waterway permit applications. WPU develops and/or reviews all stream and wetland mitigation proposals associated with ODOT projects. Once permit applications have been submitted to the regulatory agencies, WPU handles all subsequent communication, coordination, and negotiation of the necessary permits with USACE, US EPA, Ohio EPA, and USCG.
During the final permit coordination with the regulatory agencies, WPU regularly negotiates waterway permit conditions that place additional requirements or restrictions on ODOT or its contractors. In order to ensure that projects remain in compliance with the requirements of the regulatory agencies and the permits issued for a project, all waterway permit conditions are incorporated into the construction plan package as Special Provisions for implementation during project construction. See Chapter 3.3 for Field Code Changed more information on Special Provisions.
The WPU, along with district environmental and construction staff, is also responsible for ensuring that contractors remain in compliance with all waterways permit conditions during the construction of ODOT-Let and ODOT-Let LPA projects. Should a contractor violate the conditions of a waterways permit, WPU will work closely with the District Environmental Coordinator to ensure proper consultation with the regulatory agencies and that the appropriate corrective actions are implemented.
The WPU is responsible for the permitting and associated mitigation for ODOT-Let and ODOT-Let LPA projects. Waterway permits and associated mitigation for Local-Let projects are the responsibility of the local project sponsor or their agent; however, upon request, the WPU will facilitate the waterway permit process for federally-funded Local- let projects. For more information about the ODOT Local let permitting process refer to the Waterway Permitting Guidance for LPAs. Field Code Changed
A list of WPU contacts and internet resources can be found on the Ohio Dept. of Transportation website.
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1.6 PREREQUISITES FOR PERMIT APPLICATIONS This section provides an overview of the processes that may need to be completed—or documentation that may need to be provided—prior to the start of the permitting process.
USACE Jurisdictional Determination/Isolated Wetland Determination For notifying projects (projects requiring a permit application submittal) the USACE will require a jurisdictional determination (JD) to identify all regulated waters of the U.S. within a project area. The JD will allow ODOT to identify which aquatic resources are subject to regulation under Sections 404 and 401 of the CWA and which are considered exempt from these federal regulations. JDs are typically conducted for level two ESR projects once the NEPA alternative has been identified. For projects requiring a level one ESR the JD is typically issued at the time of permit authorization. The JD is requested by and coordinated through ODOT’s Eco Unit. During the JD, USACE will evaluate all aquatic resources on a project site, including streams, ponds, lakes, reservoirs, wetlands, and ditches.
JDs are not required for projects that do not impact potential isolated wetlands and will meet a non-notifying general permit (i.e., projects that meet a NWP/RGP without a permit application submittal).
During the JD site visit, USACE will establish its regulatory authority over streams by confirming the presence and location of an OHWM in the channel. Roadside drainage ditches, including those with apparent wetland characteristics, may or may not be subject to USACE jurisdiction (see Chapter 1.4). USACE has the final say on the jurisdictional status of ditches. Once a JD has been provided by USACE it is valid for five years.
When assessing wetlands during the JD process, USACE considers whether the appropriate hydrology, soils, and vegetation exist to meet the wetland criteria, as defined in the 1987 USACE Wetland Delineation Manual and applicable Regional Supplement. USACE may also define the extent of the area to be regulated. For any wetland, the regulatory jurisdiction (for USACE and/or Ohio EPA for isolated wetlands) begins at the wetland/upland boundary. Activities that occur outside the wetland/upland boundary are not subject to regulation under Section 404 and 401 of the CWA.
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During a JD site visit, USACE will also identify wetlands that are hydrologically isolated. A wetland will be determined isolated if it does not exhibit any of the following: • located in whole or part within 100 feet of the OHWM of a traditional navigable water, interstate water, territorial sea, an impoundment of a jurisdictional water, or a tributary, as defined by the 2015 Clean Water Rule. • located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the OHWM of a traditionally navigable water, interstate water, the territorial seas, and impoundment, or a tributary, as defined by the 2015 Clean Water Rule. • located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas and water located within 1,500 feet of the OHWM of the Great Lakes.
Since the Clean Water Rule was reinstated, isolated wetlands are much less common on Ohio’s landscape. If ODOT requests a preliminary JD for a project, all waters within the project area will be automatically classified as jurisdictional. Isolated wetlands (see Chapter 2.11) are regulated by Ohio EPA’s Isolated Wetland Permit Program (ORC 6111). Field Code Changed The Isolated Wetland Permit application requires a JD from USACE that identifies the presence of isolated wetlands.
Ecological Coordination For every ODOT-Let, ODOT-Let Local project, and Local Let project ecological coordination is completed by OES to meet NEPA interagency coordination requirements, Endangered Species Act requirements, Fish and Wildlife Coordination Act requirements, and to provide pre-application coordination for any necessary waterway permits. This coordination process is completed during the Preliminary Engineering Phase of a project and is a prerequisite for making a permit determination. Permit determination materials that are sent to OES prior to or with early coordination materials are not processed because an accurate permit determination cannot be made until impacts to other resources (e.g., threatened and endangered species, scenic rivers) are quantified and any modifications resulting from agency feedback have been incorporated.
The necessary coordination materials are described in ODOT’s Ecological Manual and are not described herein. In all cases, OES initiates the coordination with the agencies after receiving coordination materials from the district. The resulting comments from the agencies are added to EnviroNet as evidence of coordination; all comments must be addressed appropriately in the document.
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The level of ecological coordination required typically corresponds to the level of waterway permitting (i.e., NWP/RGP vs. IPs). The anticipated level of waterway permitting often dictates what type of ecological coordination will occur.
Note: ecological coordination does not serve as a permit determination. There is usually refinement and further advancement in project design that can occur between the ecological coordination and permit determination actions.
Per ODOT’s Ecological Manual, ecological coordination, if required, will be one of the following ecological survey report (ESR) document types: • Level 1 Ecological Survey (Document type: Level 1 ESR) – These projects typically involve minor amounts of impacts to aquatic resources and often meet the criteria for lower level waterway permits (i.e., NWP, RGP, IWP Level 1). • Level 2 Ecological Survey (Document type: Level 2 ESR) – These projects typically involve large amounts of impacts to aquatic resources and often result in higher levels of required waterway permits (i.e., Individual 404 permit, Individual 401 WQC, IWP Level 3). • Level 3 Ecological Survey (Document type: Preliminary Draft ESR, Draft ESR, and Final ESR) – These projects typically involve large amounts of impacts to aquatic resources and often result in higher levels of required waterway permits (i.e., Individual 404 permit, Individual 401 WQC, IWP Level 3).
Ohio Scenic Rivers, ODNR, Scenic River Approval Chapter 1.2 provides background information on the origin of ODNR’s Scenic Rivers Program and the laws that created the program. ODOT is responsible for obtaining the proper approval on projects that impact scenic rivers in accordance with ORC 1547.82. For Federal Aid projects, coordination with the appropriate scenic rivers staff is required during the agency coordination stage, in order to satisfy the requirements set forth in NEPA.
ODOT will initiate agency coordination with ODNR for comments and will solicit comments again for final ODNR Scenic Rivers approval prior to submission of waterway permit applications or permit determination request. The Scenic Rivers approval is required prior to construction for all projects that cross or lie within 1,000' of a State Scenic River. ODOT is responsible for obtaining Scenic River approval for all projects utilizing ODOT’s NEPA process, regardless of let type.
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For emergency, minor maintenance, and exempt projects on or near Ohio’s State Scenic Rivers, there is a Memorandum of Agreement between ODNR and ODOT that covers the Field Code Changed coordination/approval process. This agreement is titled Memorandum of Agreement Between the Ohio Department of Transportation and the Ohio Department of Natural Resources (Division of Watercraft) For Project Coordination on Ohio’s State Wild, Scenic and Recreational Rivers (Agreement Number: 11323). The agreement was signed on August 4, 2014. This MOA streamlines the coordination and approval process for ODOT projects on state scenic rivers. See ODOT’s Ecological Manual for further information on Deleted: Section 3.5.1 this MOA. Deleted:
Projects that do not meet the Scenic Rivers MOA will require a project-specific approval. Refer to ODOT’s Ecological Manual for further information on project-specific approvals. Deleted: Section 3.5.1 See ODNR’s website for more information regarding the Scenic Rivers Program and a Deleted: map linked to detailed information regarding each State Scenic River.
Section 7 of the National Wild and Scenic Rivers Act The Wild and Scenic Rivers Act established a system of National Wild and Scenic Rivers to protect selected rivers and their surrounding environment. This legislation was enacted by Congress on October 2, 1968 to balance development on certain rivers with the protection of the free-flowing condition of others in order to protect water quality of those rivers for vital national conservation purposes. The National Scenic Rivers in Ohio are state administered rivers.
Section 7 of the National Scenic Rivers Act protects listed rivers from Water Resource Projects (WRP). These projects are defined as any projects that will impact the rivers’ bed or bank below the OHWM. Included in this definition are projects that include bank stabilization, temporary or permanent fills, bank or channel shaping or dredging, placing temporary or permanent structures in the stream channel (dams, piers, or abutments), or any other type of in-stream work. This act prohibits the federal government through loan, grant, or license/permit to construct any WRP that would have a direct and adverse effect on a National Scenic River.
The act also prohibits the construction or support in any project above or below a Scenic River or on any tributary to a Scenic River that would invade the area or unreasonably diminish the Outstanding Recreational Values (ORVs) present in the area on the date of
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This Section 7 Determination officially occurs after USACE is notified of the project through a PCN or Individual 404 permit application. USACE is the party who will then request the final Section 7 approval from the NPS. This is very late in the PDP and could cause numerous problems if NPS has not seen the project up to this point. To avoid this scenario, OES initiates a preliminary Section 7 determination with NPS based on information received before the permit process begins. If the preliminary review determines that the project will not have a direct and adverse effect on the Scenic River or will not invade or unreasonably diminish the Scenic River, then the final determination will state the same if there are no changes to the project (including design, timing, construction practices, or mitigation measures). If it is found during this preliminary stage that there will be a direct and adverse impact, then changes to the project can be made to correct these issues prior to the application submittal to USACE.
ODOT’s Ecological Manual provides a discussion of Section 7 Review/Determination and how ODOT intends to handle applying for and receiving preliminary Section 7 Determinations. The preliminary Section 7 Determination is handled during the NEPA process much like ecological coordination. For ODOT waterway permits, determination is considered a prerequisite to submitting a permit application to USACE. Ideally, an applicant would want to have a preliminary determination of no direct and adverse impact to include with the permit application for review by USACE. This would shorten the permit review process and accelerate USACE’s coordination efforts with NPS, since a preliminary Section 7 determination has already been made.
In addition, the preliminary Section 7 determination provides a window of time to resolve any differences (prior to submitting a permit application to USACE) with NPS, should a direct and adverse impact determination be made. Submission of the PCN (or 404 IP application) to USACE must include the preliminary Section 7 determination and any supporting information documenting resolution of comments, environmental commitments, and mitigation. USACE then requests the final Section 7 approval directly from NPS. USACE cannot approve the 404 permit until the Final Section 7 determination is approved by NPS. Refer to ODOT’s Ecological Manual and Section 7 flowchart for Deleted: Section 3.5.2 further information. Additional information on National Wild and Scenic Rivers can be found here.
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Floodplain Coordination Floodplain coordination is important to the waterway permitting process because conditions contained within the NWPs/RGP have stipulations concerning Federal Emergency Management Agency (FEMA) mapped/regulated 100-year floodplains. NWP General Condition 10 and RGP General Condition 10 state that the activity must comply with applicable FEMA-approved state and local management floodplain requirements. NWP Regional General Condition 6g and RGP General Condition 28(b)(6) state that all PCNs must include a copy of the application Floodplain Insurance Rate Map (FIRM). In some instances, USACE may ask for evidence of coordination and/or approvals from the Local Floodplain Administrator (LFA) when FEMA-regulated floodplains are involved with the project.
Chapter 1.2 provides background on the laws that resulted in floodplain management and regulation. In 1968, Congress established the National Flood Insurance Program (NFIP) as part of the National Flood Insurance Act. This program is administered by the FEMA. The purpose of the NFIP was to enable property owners in participating communities to purchase flood insurance. It was designed to provide relief to flood victims and lower the cost of federal disaster relief. The NFIP was broadened in 1973 by the Flood Disaster Protection Act and further modified in 1994 by the National Flood Insurance Reform Act. Current floodplain management evolved out of these laws.
FEMA has supported the program with large-scale hazard identification and mapping efforts that are responsible for identifying regulated floodplains. The boundary maps, insurance rate maps, and floodway maps that have resulted identify areas that are susceptible to flooding, known as the FEMA regulatory floodplain. For regulatory purposes, the FEMA-mapped 100-year flood has become the accepted national standard in establishing the regulatory floodplain (known as the mapped 100-year regulatory floodplain, Special Flood Hazard Area (SFHA), or sometimes referred to as designated/regulatory floodway). The 100-year flood is defined as the flood event that has a 1% chance of occurring in any given year or, on average, occurs once in a 100-year period. The term floodplain is defined in ORC 1521.01 as the area adjoining any river, stream, watercourse, or lake that has been or may be covered by flood water.
In Ohio (per ORC 1521.13), ODNR, Division of Soil and Water Resources, Floodplain Management Program oversees floodplain management and regulations. However, according to FEMA, local communities are ultimately responsible for regulating development or encroachments in the designated floodplain. ODNR has informed all
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As a general rule, the following two guidelines apply: 1. Encroachment is not allowed within a designated floodway, unless it is demonstrated that the proposed encroachment would not result in an increase in flood levels during the occurrence of the 100-year base flood discharge. 2. An encroachment on any area mapped on a flood insurance study as an area of special flood hazard (Zones A, A1-A30 and/or AE) will cause no more than a one foot rise in the natural 100-year base water surface elevation (note: the LFA may have more stringent criteria than the general rule for their specific purposes).
Floodplain coordination with the LFA should occur during the NEPA process and should be included within the NEPA document. Note: floodplain coordination does not need to be completed prior to NEPA approval. Typically, the ODOT District Environmental Coordinator, ODOT District Hydraulic Engineer, or Project Manager will coordinate information with the LFA for their review and comment. The floodplain coordination should result in answers to the following questions: 1. Does the project occur within a FEMA designated and/or regulated floodplain? 2. Does the LFA see any fundamental problems with the project? 3. Will the LFA, and the local community, have a floodplain permit that needs to be obtained? If the local community requires a floodplain permit, then the respective ODOT district will be responsible for complying with the conditions of the permit. ODNR has provided guidance to ODOT that state agencies do not need to obtain the floodplain permit (for more information, see Section 1005.1.3 of ODOT’s Location and Design Manual), but must demonstrate compliance with the conditions of the permit. Some communities do not have an actual permit and will clear the project with a formal letter.
ODNR’s Floodplain Management website contains a list of Ohio Floodplain Field Code Changed Administrators. One-hundred-year floodplains are identified through the existing FEMA Field Code Changed Flood Insurance Rate Maps or FEMA-approved local floodplain maps. Floodplain maps are available from FEMA.
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Cultural Resources
Section 106 of the National Historic Preservation Act (NHPA) of 1966 requires federal Field Code Changed agencies to consider the effects of their actions on historic properties. In addition, if a federal nexus is created (e.g., federal funding, transfer of ownership, licensing, or federal permits), Section 106 will apply to the project. For all 404 permit applications submitted to USACE, ODOT provides documentation to demonstrate compliance with Section 106 requirements. For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places (NRHP), the 404 application must state Field Code Changed which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. Agency coordination with State Historic Preservation Office (SHPO) must be included in the application. The USACE District Engineer will consider any comments from SHPO concerning the proposed activity's compliance with Section 106 requirements and the need for mitigation to reduce the project's adverse environmental effects to a minimal level.
As part of the Section 106 process, ODOT/FHWA must consider the effect of the project on historic properties. Pursuant with ODOT’s 2017 Programmatic Agreement projects that have minimal potential to affect historic properties may be cleared by ODOT. Projects with the potential to affect historic properties must be coordinated with the SHPO regarding the project’s effect on those historic properties. In addition, ODOT must consult with the public, local public agencies, and other parties such as museums, historic preservation organizations, Native American Indian tribes, and archaeological organizations.
Historic properties are divided into five categories for the NRHP: sites, buildings, structures, objects, or districts significant in American history, architecture, archaeology, engineering, or culture at a national, state, or local level. The criteria used to determine the significance of cultural resources are called the National Register Evaluation Criteria. Cultural resources that meet one or more of the four National Register Evaluation Criteria and retain sufficient integrity to convey their historic significance are eligible for inclusion in the NRHP. See the OES Cultural Resources Manual for an overview of the National Field Code Changed Register, the National Register Evaluation Criteria, and a discussion of integrity. Section 106 requirements apply to all properties that are included in the NRHP and to those determined eligible for inclusion in the NRHP based on the National Register Evaluation Criteria and guidance on integrity.
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The OES Cultural Resources Section establishes procedures and guidelines for following Section 106 requirements and implementing the regulations at 36 CFR Part 800. Refer to the ODOT Cultural Resources Manual for more information. The results of cultural Field Code Changed resources coordination and documentation will be required to be completed prior to issuance of any federal permit. For waterway permits, cultural resources coordination is a prerequisite for obtaining a 404 permit, whether that be a NWP, a RGP, or an Individual 404 permit. The reason for cultural resources coordination is twofold: 1. ODOT must complete Section 106 requirements because federal funds and approvals are required. 2. USACE must document that Section 106 requirements have been fulfilled by the permit applicant prior to it being able to authorize a project as a federal permitting agency.
For all 404 permit applications submitted to USACE, ODOT provides documentation to demonstrate compliance with Section 106 requirements. For activities that may affect historic properties listed in, or eligible for listing in, the National Register of Historic Places, the 404 application must state which historic property may be affected by the proposed work or include a vicinity map indicating the location of the historic property. Agency coordination with SHPO must be included in the application. The USACE District Engineer will consider any comments from SHPO concerning the proposed activity's compliance with Section 404, 106 requirements and the need for mitigation to reduce the project's adverse environmental effects to a minimal level.
Coastal Zone Management The Coastal Zone Management Act of 1972 (CZMA) (see background on coastal zone laws in Chapter 1.2) requires that all federal actions likely to affect any land or water use or natural resource along coastal areas, must be consistent with the state's coastal management program. ODNR implements the Ohio Coastal Management Program (OCMP) in cooperation with other state agencies and local governments. The OCMP implements the federal consistency provisions of the CZMA and promotes the wise management of those land and water uses that have direct and significant impacts upon the Lake Erie coastal area. The federal consistency provisions of the CZMA bring federal actions into compliance with approved state coastal management programs and also increase state and local participation in federal decision making. If an ODOT project is within the coastal management area, but not covered by the ODNR consistency letters, that project must be coordinated with ODNR to obtain a coastal consistency certification. The coastal consistency certification may include project specific conditions. A project
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ODNR completed its review of the 2017 USACE NWP Program to determine whether their use is consistent with the OCMP. ODNR concurred with USACE’s consistency determination for the following NWPs (provided all state permits, licenses, leases, and approvals are obtained for the project): 1, 2, 4, 5, 6, 8, 9, 10, 11, 16, 18, 19, 20, 21, 22, 23, Deleted: ¶ 24, 25, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 39, 40, 41, 42, 43, 45, 48, 49, and 50.
ODNR imposed specific conditions on the Prerequisites for Permit Applications following NWPs: 3, 7, 12, 13, 14, 15, 17, 36, 38, and
51. Activities which are not included in the ODNR Depending on the type of project concurrence of the NWPs must obtain a project- and the water resource impacts specific CZMA consistency determination. On being proposed, the following items may be required for permit July 2, 2014, ODNR-Office of Coastal applications. Management provided conditional concurrence • Jurisdictional Determination Deleted: ¶ with the Federal Consistency Determination for (USACE) the current RGP. • Ecological Coordination (various agencies) • Ohio Scenic Rivers Approval In December 2018, ODOT and ODNR developed Deleted: May (ODNR) a Memorandum of Understanding (MOU) to Deleted: 2005 • Section 7, National Wild and Field Code Changed streamline the Coastal Zone Consistency Scenic Rivers Act Approval Certification Process. The MOU is currently being (NPS) updated and will be available at a future date. The • Floodplain Coordination (local 2005 MOU should be utilized until it is officially administrator) replaced. • Cultural Resources Coordination (SHPO)
• Coastal Zone Management Stream and Wetland Mitigation Consistency Approval (ODNR) ODOT projects requiring waterway permits may • Stream and/or Wetland require some form of compensatory stream Mitigation Proposal (OES) and/or wetland mitigation. The process of | 41
Waterway Permits Manual seeking out stream/wetland mitigation opportunities, especially for major projects, should begin prior to the drafting of waterway permit applications and is therefore considered a prerequisite for waterway permitting. See Chapter 7 of this manual for Field Code Changed further information regarding ODOT’s procedure for mitigation.
1.7 ODOT’S PROJECT DEVELOPMENT PROCESS (PDP) ODOT’s PDP is a framework for projects that establishes scope of work and deliverables and provides for an integrated, multi-disciplined decision-making process. The PDP forms the basis for legally defensible actions by ODOT within NEPA. In 2011, ODOT revamped the PDP to minimize project processing time, reduce costs in the face of dwindling revenue, and to better balance risk during project development. The primary goal of the new PDP was to allow project managers to develop what is needed for a project to move forward and balance potential NEPA work items against project-specific details. The PDP merges design and NEPA.
The new PDP is a five-phased process. A project is moved through these phases utilizing one of five paths, depending on the complexity of the project. Regardless of path, the project is initiated via the Project Initiation Package. During an on-site review of the project area conducted in the Planning Phase of the PDP, ODOT district staff will recognize the presence of surface waters that may require permitting to impact. See the PDP website for more information.
OES personnel, district environmental staff, and/or prequalified consultants are responsible for completing required documents and tasks related to waterway permitting throughout the PDP. For example, completion of the ESR, estimating impacts, drafting and submitting of the permit application, and the receipt of the permits are all individual tasks within the phases in each path. Note: not all projects will require completion of Deleted: ¶ ¶ every task outlined in Table 1. Deleted: ¶ ¶ Table 1: Project Development Process and Waterway Permitting Related Tasks PDP PHASE WATERWAY PERMITTING RELATED TASKS - Conduct literature and field review of project study area to identify potential environmental issues (streams, wetlands, threatened or Planning endangered species habitat) - Draft the project’s purpose and need statement Preliminary - Perform initial ecological field studies of project alternatives for Engineering inclusion in Alternative Evaluation Report
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- Conduct fieldwork for ecological resources for the preferred alternative - Prepare permit determination request and issuance of a permit determination - Complete initial coordination with natural resource regulatory Environmental agencies (ODNR, USFWS, USACE, Ohio EPA) Engineering - Evaluate stream and/or wetland mitigation opportunities - Prepare and submit permit applications (404, 401, Section 10, Section 9, Section 408, Isolated wetlands) - Prepare and submit a permittee-responsible compensatory mitigation plan - Commence work on any required compensatory mitigation - Ensure that any required mitigation work is underway prior to initiation of construction and impacts Final Engineering/ROW - Review of Stage 3 design plans to confirm that all applicable environmental commitments and waterway permit Special Provisions are included, as applicable - Attend pre-construction, progress, and post-construction meetings to discuss environmental commitments and compliance, and Construction permit requirements, as needed - Completion of any required mitigation monitoring and submission of annual reports to USACE and/or Ohio EPA.
1.8 WATERWAY PERMITS AND THE DESIGN-BUILD PROCESS The design-build process combines the design and construction of a project into one contract and typically results in faster project delivery than the traditional design-bid- build process. The designing firm and construction contractor become a team, working concurrently on the design and construction phases of a project, to expedite delivery. The time savings in design-build projects is realized by eliminating the lead time necessary to contract a designer, and then accept bids from contractors to build the design. Projects proceed from design to construction much faster through implementation of the single design-build contract.
Additionally, since the designer and contractor work in tandem, the contractor's changes can be incorporated in the design phase, eliminating the need for costly and time- consuming changes during construction. This benefit also allows ODOT to estimate project costs early in the PDP, allowing for more effective budget planning.
The design-build approach presents unique challenges for the waterway permits process, especially when a project requires IPs. With a design-build project, the designer and
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Waterway Permits Manual contractor must be granted the flexibility to develop a project according to the conditions of the site, safety, design standards, and transportation demands. Since a significant portion of the design occurs after the project sells, the ecological studies and waterway permits must occur early in the design process with minimal design details. In order to allow the design-build team the flexibility that defines this project approach, environmental impacts must be conservatively estimated as a “worst case scenario” even though the degree of impacts initially estimated will not likely be the final result of the project.
Challenges arise when demonstrating avoidance and minimization and fulfilling mitigation requirements for projects requiring Individual 404 and 401 permits. OAC 3745-1-05 and Section 404(b)(1) of the CWA requires the applicant to address avoidance and minimization of streams and wetlands in a project area. ODOT must demonstrate avoidance and minimization for the on-site and off-site alternatives discussed in the 401 application. The on-site alternative will typically need more detail and discussion on avoidance and minimization than the off-site alternative. Therefore, ODOT must limit the design-build team’s flexibility, typically to a minimal extent, in order to secure the 401 and 404 permits.
The method by which ODOT can exercise some limitations on the design-build team occurs by creating “no work” zones that the contractor must avoid under all circumstances. These “no work” zones must be established for the project scope so that the design-build teams bidding on a project understand the expectations and limitations of the project. Avoidance of the “no work” zones are included in the environmental commitments, special provisions, and conditions of the waterway permits.
Mitigation requirements are a result of the degree of avoidance and minimization established for the selected alternative. Stream and wetland mitigation is often significantly over estimated in order to satisfy the design-build process, which can result in a more costly and challenging mitigation effort. The development of the mitigation plan must begin early in the process in order to complete a final mitigation plan for receipt of 404 and 401 permit approvals, thereby allowing construction to commence on schedule. While the total quantity of stream and wetland impacts permitted will not likely be affected by the project, with impacts essentially being over mitigated, the resource agencies will not allow mitigation to be refunded for design-build projects.
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OES, the design consultant, and environmental consultant must work cooperatively to determine what resources can be avoided and/or minimized to establish “no work” zones. After determining “no work” zones, final impacts can be calculated and the amount of required mitigation can be determined. If scoped to complete waterway permit applications for a design-build project, contact OES to set up a permit strategy meeting.
1.9 CONSULTANT PREQUALIFICATION AND EVALUATION Prequalification of environmental services is one component of ODOT’s qualifications- based selection process. Only consultants who are prequalified are eligible to be selected to work on environmental projects. These environmental disciplines have specialized documentation requirements and are a part of the interdisciplinary expertise approach to transportation decision making described in ODOT’s transportation process manuals and guidelines. Waterway permits is a discipline where ODOT requires consultants to be prequalified.
ODOT’s "Consultant Prequalification Requirements and Procedures" provide detailed information on all of the department’s prequalification disciplines and submittal format and requirements. Guidance for environmental consultant prequalification can be found in the above link. Documents prepared by consultants will be evaluated by the WPU using ODOT’s Consultant Evaluation Process. This process evaluates a consultant’s work with respect to waterway permit applications and permit authorizations from the agencies.
Consistent poor performance may jeopardize the prequalification status of the consultant. As discussed in Chapter 1.1, one of the primary goals of the manual is to provide guidelines for preparing waterway permit applications in a consistent manner so as to prevent such occurrences.
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CHAPTER 2. TYPES OF WATERWAY PERMITS 2.1 INTRODUCTION TO TYPES OF WATERWAY PERMITS
Chapter 1.2 and Chapter 1.3 explain how the various regulatory agencies have the Field Code Changed authority, through federal and state law, to regulate activities that result in temporary or permanent impacts to aquatic resources. The various aquatic resources which are subject to waterway permitting are discussed in Chapter 1.4. Any entity, including private citizens, companies, and federal/state/local agencies, that proposes to impact a water of the U.S. or a water of the state through the discharge of dredged or fill material must first obtain appropriate authorization(s) from the applicable agency(s). A waterway permit is the vehicle for obtaining legal authorization to impact any of the aforementioned aquatic resources.
The types of waterway permits that may be required depend on the resource being impacted, and the extent (area and/or length) of the impact. A brief summary of the different types of waterway permits and the agency responsible for issuing those permits is provided in this section below. For more information: • Permit application templates, including tables see Appendix B; Field Code Changed • Guidance and instructions for filling out permit applications see Appendix C; Field Code Changed • Examples of each type of permit application Appendix D; Field Code Changed • Flowcharts identifying different permitting scenarios see Appendix E; Field Code Changed • Figures and diagrams to aid in determining project impacts see Appendix F. Field Code Changed
USACE USACE regulates the discharge of dredge or fill material into waters of the U.S. and authorizes alterations to navigation channels. USACE issues several types of permits depending on the quantity and type of aquatic resources proposed for impact. The types of permits are listed below: • Section 404 NWP or RGP not requiring Pre-Construction Notification (PCN) (Non-Notifying) • Section 404 NWP or RGP requiring PCN • Section 404 NWP or RGP requiring PCN and requiring an Ohio EPA Individual Section 401 WQC • Section 404 IP • Section 10 Permit/Notice to Navigation • Section 408 Permission
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Ohio EPA Under Section 401 of the CWA, Ohio EPA must certify that all Section 404 permits, NWPs, and the RGP issued by USACE comply with state water quality standards. This state agency also regulates discharges to isolated wetlands that are identified as non- jurisdictional by USACE. In the context of surface water permitting, Ohio EPA issues three types of permits: • Notification Response Letter (NWPs only) • Individual Section 401 WQC • Isolated Wetland Permit, General Isolated Wetland Permit (Level 1, Level 2, or Level 3 Review)
USCG USCG is responsible for reviewing projects, such as bridges, dams, dikes, or causeways, over or in Navigable Waters of the U.S. in order to ensure that such projects do not obstruct navigation. To meet regulatory responsibility, the USCG will issue Section 9 Bridge permits for all projects that span a Navigable Water of the U.S., which includes the territorial seas, internal waters of the U.S. subject to tidal influence, and waters of the U.S. that are or have been used, or are or have been susceptible for use, as highways for substantial interstate or foreign commerce. Chapters 2.2 through Chapter 2.11 provide an overview and summary of each of these types of waterway permits. The following table outlines average time frames for the resource agencies to process common waterway permit(s). All of the time frames in Table 2 assume that the JD has been obtained, where appropriate, and that a complete application has been submitted.
Table 2: Regulatory Agency Permitting Time Frames Permit Type Estimated Agency Processing Time* Regulatory Agency
NWP/RGP 30 days USACE NWP/RGP w/ PCN 60 days USACE NWP/RGP w/ 401WQC 6-8 months USACE, Ohio EPA Permit 404/401 404/401 404 IP/401 WQC 8-12 months USACE, Ohio EPA Level 1 = 30 days
Isolated Wetland Permit Level 2 = 90 days Ohio EPA Level 3 (401 WQC) = 6-12 months NWP w/Notification 45 days Ohio EPA Section 9 permit 9-12 months USCG
If Applicable Section 10 permit 60 days USACE Section 408 Permission 30-120 days USACE
* These time frames are estimates based on average agency review times. In addition, OES-WPU has a maximum processing time of four weeks to review an application prior to submission to the agencies.
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2.2 404 NWP OR RGP NOT REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) USACE has legal authority to regulate the discharge of dredged or fill material in waters of the U.S. through Section 404 of the CWA. USACE implements the Section 404 permitting process through two levels of permits: general permits (NWPs and RGPs) and IPs. USACE can issue RGPs for specific activities for specific applicants. NWPs are activity-based general permits which pre-authorize project types determined by USACE to have minimal adverse effects on waters of the U.S. Generally, “minimal” describes projects that will impact less than 0.50 acre of jurisdictional wetlands or Waters of the U.S. and 300 linear feet of jurisdictional streams. However, there are other types of impact limitations that may define whether or not a project meets a NWP. ARGP is similar to the NWP, but its use is limited to specific applicants and activities. ODOT’s RGP provides additional flexibility for routine transportation projects, while eliminating the administrative burden for both ODOT and USACE. Individual 404 permits (described in Chapter 2.6) are used to authorize projects with more than a minimal adverse effect on the aquatic environment.
Nationwide Permits The current NWPs were issued by USACE on March 21, 2017 and expire on March 18, 2022. Each NWP has multiple sets of conditions placed upon it by USACE. These may be general conditions that apply to all NWPs, permit-specific special conditions, and/or regional conditions that place certain requirements on the NWP based on the geographical location of the project, the water resources proposed to be impacted, and the type of work that will be undertaken. Additionally, Ohio EPA has issued its own general and permit-specific special conditions to the 2017 NWPs to ensure that the NWPs comply with Section 401 of the CWA. If a project meets all of Ohio EPA’s conditions for the NWP, a Section 401 WQC is granted without the need for project-specific coordination with Ohio EPA. Note: all conditions of a NWP must be met for that permit to be valid.
The complete text of the NWPs, including the general conditions, regional conditions, State of Ohio 401 WQCs, and ODNR Coastal Zone Concurrency conditions of the NWPs, can be found here.
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The most commonly used NWPs for ODOT projects include the following: • NWP 3 - Maintenance • NWP 14 - Linear Transportation Projects NWP 15 – USCG Approved Bridges Other NWPs for ODOT projects include:
• NWP 6 - Survey Activities Note to be eligible to use “NWP • NWP 7 - Outfall Structures and Associated 15 USCG Approved Bridges” Intake Structures the structure must have been constructed after January 1, • NWP 12 - Utility Line Activities 1967 or previously received a • NWP 13 - Bank Stabilization USCG Section 9 bridge permit. • NWP 15 - USCG Approved Bridges Prior to the January 1, 1967 • NWP 18 - Minor Discharges date structures were approved • NWP 19 - Minor Dredging* by the USACE. • NWP 23 - Approved Categorical Exclusions • NWP 25 - Structural Discharges* • NWP 33 - Temporary Construction Access and Dewatering • NWP 39 - Commercial and Institutional Developments* • NWP 42 - Recreational Facilities* *rarely used NWPs for ODOT projects
The NWP permit process is relatively simple. In some cases, a permit determination for a NWP can be made without notifying USACE or Ohio EPA, provided that the project can meet all the conditions of a particular NWP without surpassing the impact threshold limits and/or PCN thresholds. Projects that require PCNs are described in Chapter 2.3. OES-WPU staff assess ODOT projects by: 1) evaluating a project’s impacts to aquatic resources; 2) assessing whether the project’s impacts will be covered under a particular NWP or combination of NWPs, while meeting all of the conditions of that NWP(s); and 3) identifying an official Permit Determination for the project, which allows the project to proceed under the particular NWP(s) without formally notifying USACE of the activity.
This end result is a NWP without a PCN (i.e., non-notifying). OES-WPU will typically respond to the appropriate district with a PD and Special Provisions (SP). The SP will be attached to the construction plans by the appropriate district to ensure project compliance with the appropriate permit(s). OES maintains a review time period of 30 days for a permit determination; however, review time is typically performed in a much shorter time period. The PD process is further described in Chapter 3. Field Code Changed
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USACE allows projects to use multiple NWPs; however, multiple NWPs cannot be used to increase allowable impacts to aquatic resources. For example, an applicant utilizing NWP 14 cannot combine this permit with NWP 3 to increase the amount of permissible impacts to aquatic resources to more than what is allowed under a NWP 14 permit. If more impacts are necessary, then the project would require an Individual 404 permit and Individual 401 WQC.
For linear transportation projects involving multiple stream crossings, if each crossing meets the USACE definition of “single and complete project”, then impacts will not be combined between crossings and each crossing can potentially meet a NWP 14 or RGP Section A, as long as permanent impacts at each crossing do not exceed 0.5 acre and all other 404 and 401 conditions are met.
For a linear transportation project (NWP 14) that contains both notifying and non- Definition for Single and Complete notifying single and complete projects, all Project (n): single and complete projects must be included in the PCN to the USACE. While The term “single and complete project'' is OES initially determines which waterway defined at 33 CFR 330.2(i) as the total project proposed or accomplished by one impacts are single and complete projects, owner/developer or partnership or other the USACE has the ultimate authority to association of owners/developers (see make this determination and the definition of independent utility in Deleted: Appendix A) Appendix A. applicable level of permitting.
For linear projects, the “single and The USACE definition of “single and complete project'' (i.e., a single and complete project” is another important complete crossing) will apply to each crossing of a separate water of the U.S. item regarding evaluation of impacts to (i.e., a single waterbody) at that location. aquatic resources and level of permit An exception is for linear projects crossing required for a project (see below). For a single waterbody several times at separate and distant locations: each linear projects, the definition of “single crossing is considered a single and and complete project” will apply to each complete project. However, individual crossing of a separate water of the U.S. channels in a braided stream or river, or individual arms of a large, irregularly (i.e., a single waterbody) at that location. shaped wetland or lake, etc., are not In practical terms, this means that if a separate waterbodies. [2017 Nationwide linear project impacts a stream at one end Permit definition]. of the project and a wetland at the other
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Waterway Permits Manual end of the project, their impacts could be evaluated separately as “single and complete projects” and their respective impacts may not need to be added together. OES may consult USACE for linear projects that involve multiple wetland impacts, since individual wetland impacts may not be viewed as single and complete, especially if the wetlands are not associated with a stream crossing.
Regional General Permit
The RGP is a specialized permit developed by ODOT and USACE to address common Field Code Changed transportation-related activities for ODOT-let projects. The RGP has three distinct sections, A, B and C, which essentially emulate the 2017 NWPs 14, 3 and 13, respectively. However, limitations and conditions for the RGP differ from the NWPs. The RGP was approved and issued by USACE on October, 24, 2019 and expires on October 24, 2024. Ohio EPA provided a 401 WQC and conditions for the RGP on October 4, 2019. ODNR provided coastal management Federal Consistency Determination on September 2, 2019.
This RGP can only be utilized for ODOT-Let, ODOT-Let LPA and state forces projects. Generally, the RGP will authorize activities in waters of the U.S. associated with linear transportation and bank stabilization projects and the maintenance of existing transportation infrastructure. There are general conditions, in addition to Ohio EPA 401 WQC conditions, that are similar to the NWPs. Sections A, B, and C can be used independently or collectively, with thresholds for submittal of a PCN similar to the NWPs. The RGP provides greater flexibility for ODOT in specific ways compared to the NWPs, and all sections incorporate temporary construction, and access and dewatering (NWP 33). For temporary fill, USACE requires that appropriate measures be taken to maintain normal downstream flows and minimize flooding. The temporary fill must not be eroded by high flows; and upon completion of the project, the temporary fill must be removed in its entirety and the area of fill must be returned to pre-construction elevations and revegetated (as appropriate). Note: Ohio EPA does not have notification requirements for the current RGP.
2.3 USACE, 404 NWP, OR RGP REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) As discussed in the previous section, certain impacts can be authorized by NWPs or the RGP but require notification to USACE through the PCN process. USACE inserts certain “triggers” in the NWPs and RGP that direct the applicant to notify USACE of its intent to discharge dredged or fill material into a water of the U.S. The PCN form is the USACE Deleted: standard
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Engineering Form 6082 which requests that the applicant provide various types of Deleted: 4345 information regarding the proposed project, including its impacts, as well as evidence of coordination and compliance with other regulations. General Condition 32 of the NWPs and General Condition 28 of the RGP provides the requirements of a PCN. USACE requires that the PCN contains supplemental information (i.e. wetland delineation report, wetland and stream quality assessment forms, construction plan sheets/drawings, photographs of the aquatic resources, etc.) that aid USACE in evaluating the project. If an ESR has previously been submitted to USACE for review during the ecological coordination process (i.e. during coordination associated with a request for a JD), the PCN should refer to stream and wetland information contained within the ESR. Chapter Field Code Changed 4.1 and Appendix C describe how to fill out ENG FORM 6082 as a PCN and provides a Deleted: 4345 checklist to assist in compiling a complete PCN package. Field Code Changed
Provided that it has received a complete application, USACE is required to make a permit determination on a PCN within 45 days of receipt of the PCN. In addition, USACE has 30 days from the date of receipt to notify applicants if their PCN is complete. Should the applicant submit a complete application and not receive a determination from USACE, authorization under the requested NWP(s) can be assumed by the applicant. This situation does not occur on ODOT projects and OES will consult with USACE prior to assuming authorization on any project without a formal USACE authorization. LPAs and their consultants may not assume authorization under the requested NWP, unless directed to do so by OES-WPU.
PCN Thresholds for NWPs Most Commonly Used By ODOT Agency coordination is required for all NWP activities that require a PCN and result in the loss of greater than 0.5 acre of waters of the United States; NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52; activities that require a PCN and result in the loss of greater than 300 linear feet of stream bed; NWP 13 for activities in excess of 500 linear feet, fills greater than one cubic year per running foot, or involve discharges of dredged or fill material into a special aquatic site; NWP 54 for activities in excess of 500 linear feet, or that extend into the waterbody more than 30 feet from the mean low water line in tidal waters or the OHWM in the Great Lakes. Below is a listing of common thresholds which, if met or exceeded, will require that a PCN be submitted by OES before USACE can authorize the proposed impact under the given NWP.
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NWP 3 Maintenance Deleted: ¶ ¶ • Activities described in paragraph (b) of NWP 3; • The use of any permanent vertical bulkhead greater than one foot waterward of the original alignment. A vertical bulkhead is defined as any structure, or fill, with a vertical face. It may be constructed of timber, steel, concrete, etc.; • Activities in Section 10 waters that involve the discharge of greater than 10 cubic yards of dredged and/or fill material below the ordinary high water mark; • For temporary structures, work, and discharges (including cofferdams) necessary for access fills or dewatering of construction sites occurring in wetlands, perennial streams, or Section 10 waters when the primary activity is otherwise authorized by USACE. The Notification must include a restoration plan showing how all temporary fills and structures will be removed and the area restored to pre-project conditions.; • All activities in the Ohio River and the Muskingum River; and • Any stream channel modification that exceeds a distance of 50 feet upstream and 50 feet downstream of the structure.
NWP 13 Bank Stabilization • The activity is no more than 500 feet in length along the bank; • The activity will not exceed an average of one cubic yard per running foot; and • The activity does not involve discharges of dredged or fill material into special aquatic sites.
NWP 14 Linear Transportation Projects • Loss of waters of the United States exceeds 1/10 acre; • There is a discharge in a special aquatic site, including wetlands; and • All activities in Section 10 waters.
PCN Thresholds for the RGP A listing of PCN thresholds for the RGP is provided below. As with the NWPs, if any of these thresholds are met or exceeded, then a PCN is required before the proposed discharge can be authorized by USACE. For RGP projects the Ohio EPA’s stream eligibility process does not apply.
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RGP A, Linear Transportation Projects • Loss of waters of the U.S. exceeds 1/10 acre; • Discharge in a special aquatic site, including wetlands; • Discharge of greater than 25 cubic yards of dredged and/or fill material in a Section 10 water; • Total combined discharge of fill material into streams, including temporary discharges, is greater than 300 linear feet for combined ephemeral, intermittent, and perennial streams for any single and complete project.
RGP B, Maintenance • Discharge of greater than 25 cubic yards of dredged and/or fill material in a Section 10 water; • Activities described in paragraph (b) of RGP B; • Use of vertical sheet piling and closed structures in the special habitat waters of Lake Erie.
RGP C, Bank Stabilization • Greater than 500 feet in length along the bank; • Exceed an average of one cubic yard per running foot along the length of the bank; • Discharges of dredged or fill material into special aquatic sites. • Discharge of greater than 25 cubic yards of dredged and/or fill material in a Section 10 water; • Activity is located in Lake Erie, Sandusky Bay, or Maumee Bay and involves the discharge of more than 10 cubic yards of dredge and/or fill material; • Use of any permanent vertical bulkhead in Lake Erie, Sandusky Bay, and Maumee Bay.
For any project in which wetland impacts exceed 0.10 acre, USACE requires a compensatory mitigation proposal as a component of the PCN. USACE will also require stream mitigation for permanent stream impacts over 300 feet, unless the applicant can demonstrate that the project will result in a minimal adverse effect on the aquatic environment. The compensatory mitigation proposal may be either conceptual or detailed but must outline mitigation efforts to offset permanent losses of waters of the U.S. and a statement describing how temporary losses of waters of the U.S. will be minimized to the maximum extent practicable.
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The PCN thresholds in the NWPs/RGP are not the only reason an applicant may want to submit a PCN to USACE for an official permit determination. In some cases, the conditions of permits can be debatable or difficult to interpret, thus resulting in “gray areas.” Typically, if a project falls into one or more “gray areas,” OES-WPU can conduct informal coordination with USACE to determine what level of permitting is required. Consultants should work closely with the ODOT District Environmental Coordinators and OES-WPU to determine whether a PCN will be required for a given project.
Following receipt of notification, USACE will make a formal permit determination. Depending on the nature of the activity and magnitude of wetland and stream impacts, USACE could determine that the project can be authorized by NWP or RGP, require an Individual 404 Permit, or deny authorization (a very rare possibility). In certain instances, USACE could assign a NWP or RGP to the project, but direct the applicant to obtain a project-specific 401 WQC from Ohio EPA because the project exceeds the thresholds placed on the NWP or RGP by the State of Ohio. If USACE authorizes the project under a NWP(s) or RGP, the agency will send ODOT an official letter stating the NWP(s) or portion of the RGP under which they have authorized the project. USACE will also attach a copy of the permit with all conditions and a post-construction compliance certification form.
Construction Completion Certification The construction completion certification form certifies that the work authorized by the USACE has been completed in accordance with the terms and conditions of the applicable permit. The form must be signed by the ODOT Construction Engineer and provided to OES following completion of the authorized activity. OES will subsequently provide the form to the USACE ORTO.
2.4 OHIO EPA, 401 NWP REQUIRING NOTIFICATION During the WPU permit determination process the WPU reviewer will determine if notification to Ohio EPA is required. Ohio EPA, like USACE, has a separate notification process per condition E.2 of the Ohio EPA Nationwide Certifications General Condition 32(b) and Regional General Condition 6. This process is similar to the USACE PCN process. Ohio EPA requires the use of USACE’s Engineering Form (ENG Form 4345), all associated attachments, and other USACE requirements. Similar to a USACE PCN discussed in Chapter 2.3, mitigation may be required for the Ohio EPA Notification. For information on completing ENG Form 4345 see Chapter 4. Deleted: Chapter 4.1
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Below is a listing of notification triggers which, if met or exceeded, will require Notification by ODOT before Ohio EPA can authorize the proposed impact(s) under the given NWP. This authorization is in lieu of the USACE PCN process.
Notification Thresholds for NWPs Most Commonly Used By ODOT NWP 3, Maintenance. • Impacts to Category 3 wetlands • Impacts that are greater than or equal to 0.10 acre of wetland
NWP 13 Bank Stabilization • Impacts that are greater than or equal to 0.10 acre of wetland
NWP 14, Linear Transportation Projects • Impacts to Category 3 wetlands • Impacts that are greater than or equal to 0.10 acre of wetland • Streams located in possibly eligible areas as depicted in the GIS NWPs Stream Eligibility Map.
Completeness Review and Notification Response Letter Ohio EPA will conduct a completeness review of the notification submittal. If the submittal is deemed incomplete, Ohio EPA will send an incomplete letter communicating what is missing from the submittal. After the submittal is deemed complete Ohio EPA will issue a response letter stating that the project meets the NWP certification.
Note: no actual permit is issued with the Ohio EPA Notification process. If no written notice has been received from Ohio EPA and 45 calendar days have passed, then the project may move forward per part one E.5 (b) of the 2017 Ohio EPA Nationwide Certifications.
2.5 EXPIRATION OF NWPS AND RGP Under the current NWP program, USACE and Ohio EPA must review and reauthorize the NWPs every five years. A project authorized under the 2017 NWPs may proceed under the applicable NWP until they expire on March 18, 2022 or if the project is under contract prior to March 18, 2022 the NWP will expire on March 18, 2023. A NWP authorization
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For notifying projects, the applicant must request, in writing to USACE or Ohio EPA, a reauthorization of the permit if the activity will not be completed within the specified time frame. If a permit reauthorization request is required, OES-WPU should be contacted immediately. Coordination with OES-WPU for permit reauthorization is required a minimum of 90 days prior to expiration.
Activities authorized by the RGP are valid until the RGP is modified, reissued, or revoked. It should be noted that there is no 12-month window to complete an activity after the expiration date of the RGP (unlike with Expiration of Nationwide Permits and Regional General NWPs). Activities permitted under the RGP Permits and Project must be complete prior to the expiration date Reauthorization Procedure of the RGP. The current RGP is scheduled to expire on October 24, 2024. If impacts NWPs – expire on March 18, 2022. Projects under contract by the authorized under the RGP are not complete by expiration date must be completed October 24, 2024, coordination with OES- within 12 months of the expiration WPU for permit reauthorization is required a date. A reauthorization from USACE or Ohio EPA is required if the project will minimum of 90 days prior to expiration. not be completed within this time frame. For projects that require authorization, a new permit determination request should be RGP – expire on October 24, 2024. submitted to OES-WPU. Following receipt of Projects are authorized until the RGP is a new permit determination request from the modified, reissued, or revoked. Unlike the NWPs, the RGP does not have a 12- district for projects requiring NWP or RGP month grace period to complete the reauthorization, OES-WPU will respond to project. the ODOT district with a new permit determination and special provisions package Note: If projects cannot be completed within these time frames, OES-WPU to amend to the contract. See Chapter 3.3 for should be contacted 90 days before Field Code Changed details on the Special Provisions. expiration, at a minimum, so that project reauthorization from USACE or Ohio EPA can be secured. 2.6 USACE, 404 INDIVIDUAL PERMIT (IP) Section 404 IPs are intended to authorize projects which have more than a minimal adverse effect on the aquatic environment. In general terms, “minimal” adverse effects
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Whether a 404 IP is required for a project may be determined by either OES-WPU during the permit determination process or by USACE through the formal PCN process. A 404 IP application is essentially the same process as the PCN. However, the 404 IP application Deleted: standard USACE Engineering Form (ENG FORM 4345) utilized for a PCN. uses the standard USACE Engineering Form (ENG FORM 4345) and will include a more detailed description of the aquatic resources and the proposed impacts . The application Deleted: than a PCN submission. also will include an alternative analysis per the requirements of 40 C.F.R. part 230 section Deleted: 404 (b)(1) guidelines and an analysis of wetland and stream avoidance. The 404 IP application must provide sufficient information for USACE to complete a 404(b)(1) evaluation, which must demonstrate that there are no practicable alternatives to the design of the project that would have less of an impact on federally regulated waters of the U.S. Chapter 4.2 provides detailed guidance on completing the 404 permit Field Code Changed application.
If a project will require a 404 IP, it will also require an Individual 401 WQC from Ohio EPA. A combined 404/401 application will be concurrently submitted by OES-WPU to both USACE and Ohio EPA. The combined application approach develops a parallel review process for the agencies and accelerates subsequent review and permit authorization. In addition, the combined application with concurrent review aids USACE in its 404(b) decision-making process, which assures ODOT’s compliance with 404(b)(1) guidelines.
In some cases, a project’s impacts may meet the USACE conditions of a general permit but exceed Ohio EPA’s 401 WQC on the NWPs. When this occurs, the project may qualify for a 404 general permit, but also require an individual 401 WQC, consequently resulting in two separate applications. A project authorized under this circumstance may have reduced processing time compared to and individual 404 permit process
The IP Process For all ODOT projects, Section 404 IPs are reviewed by and issued through the ORTO. USACE’s processing of 404 IPs involves the evaluation of individual, project-specific applications which can be described in three steps: pre-application coordination, formal project review, and decision making.
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Pre-application Coordination Pre-application coordination involves the submission of an ecological survey report to USACE for its review and comment. Coordination generally happens during the Environmental Engineering stage of the PDP. In addition, a field meeting may occur during ecological coordination to evaluate the project and its impacts and make a JD on all waters of the U.S. within the project area. ODOT’s Ecological Manual discusses pre- Deleted: Section 4.1 application coordination and ecological survey reports in more detail. Deleted:
Formal Project Review Formal project review begins once an application is received by USACE. Initially, USACE will review the IP package for completeness. Once USACE determines that the IP is complete, they will prepare and issue a 30-day public notice to all known interested persons, other federal, state, and local agencies, and adjacent land owners. Upon completion of the public notice comment period, USACE will evaluate the impacts of the project and all comments received, negotiate necessary modifications of the project if required, and draft the appropriate documentation for a permit decision.
Decision Making When making a permit decision, USACE will consider the public’s interest in the project. USACE will assess the benefits and detriments of all factors of a project, including: conservation; aesthetics; wetlands; cultural resources; navigation; fish and wildlife; threatened and endangered species; water supply; water quality; floodplain impacts; and any other issues deemed to be important to the needs and welfare of the general public. The permit decision includes a discussion of the environmental impacts of the project, the findings of the public interest review process, and any special evaluations that may be required. USACE will typically ask ODOT for assistance in addressing any public comments or concerns.
In some cases, USACE may hold a public hearing if substantial or substantive comments are received, but a hearing is uncommon for ODOT projects. The public hearing can be held in conjunction with Ohio EPA’s public hearing for the Section 401 WQC for the project. In most cases, a permit will be granted unless the project is found to be contrary to the public interest and/or if sufficient compensatory mitigation is not provided by the applicant.
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There are a few things to consider while the concurrent 404/401 review is taking place. Ohio EPA cannot formally act on the 401 WQC application until the USACE 404 public notice is issued. Thus, if there are issues with the 404 application, it is in ODOT’s best interest to quickly address those concerns as to not delay Ohio EPA’s public notice/hearing process. Additionally, USACE cannot issue the final 404 IP until Ohio EPA issues the 401 WQC for the project. USACE may be ready to approve the 404 IP but cannot do so if Ohio EPA has not approved the 401 WQC. Thus, the delay in the 401 WQC approval will inadvertently delay the 404 IP. These steps emphasize why it is critical that ODOT invests in training, pre-application meetings, and permit review and any necessary revisions in order to develop high-quality and accurate permit applications.
Preparation and initial review of the Section 404 IP is conducted through ORTO. Upon completion, the draft Section 404 IP is sent to the USACE Huntington District office for final review by Huntington regulatory staff. This review by USACE Huntington typically takes between one and four weeks, depending on the size, type, and complexity of the project, and should be accounted for in project scheduling. Once complete, the initial proffered Section 404 IP that contains the terms and conditions of the permit is provided to ODOT. Once ODOT concurs with and signs the permit, the initial proffered permit is returned to USACE for the commander’s signature, upon which the permit becomes validated. The final validated 404 IP is then sent to ODOT. OES-WPU will include the applicable conditions of the final validated 404 IP in the Special Provisions and provide the Special Provisions to the appropriate ODOT district office for inclusion into the construction plan package. See Chapter 3.3 for additional details on the Special Field Code Changed Provisions. Some projects may qualify for a waiver of a general permit condition and may only require a PCN instead of a 404 IP. For more information on the 404 waiver process see Chapter 4.3. Field Code Changed
2.7 USACE SECTION 10 PERMIT Section 10 of the Rivers and Harbors Act of 1899 requires that a project applicant to obtain USACE approval prior to the start of any work in or over Navigable Waters of the U.S., or for projects which affect the course, location, condition, or capacity of such waters. Typical activities requiring Section 10 permits include: • Construction of piers, wharves, bulkheads, marinas, ramps, float intake structures, cable or pipeline crossings, among others. • Dredging or disposal of dredged materials, excavation, filling, or other modification of a Navigable Water of the U.S.
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Section 10 permits are managed by the same USACE districts as the 404 permits (for ODOT, all Section 10 permits are reviewed by ORTO and ORTO coordinates with the respective USACE district). For projects requiring authorization under both Section 10 and Section 404, those permit applications and review are typically handled jointly. The application process for a Section 10 permit is the same as the PCN process, as long as an individual Section 10 approval isn’t required.
Work within Section 10 waters is often a trigger that results in a PCN needing to be submitted to USACE. For example, a PCN is required for the following RGP and NWPs if the proposed activity occurs within any Section 10 water in Ohio: • RGP A • RGP B • NWP 12 • NWP 14 • NWP 15
For NWP 3 there are two Section 10 conditions that will trigger a PCN to USACE: • When the activity involves the discharge of greater than 10 cubic yards of dredged and/or fill material below OHWM. • For temporary structures, work and discharges (including cofferdams) necessary for access fills or dewatering of construction sites occurring in Section 10 waters when the primary activity is otherwise authorized by USACE. In this instance, the PCN must include a restoration plan showing how all temporary fills and structures will be removed and the area restored to pre-project conditions.
Tabulated lists of final determinations of navigability (i.e., Section 10 waters) are maintained in each USACE district office and are updated as needed by court decisions, jurisdictional inquiries, or other changed conditions. Links to lists of Section 10 waters for Ohio are included in Chapter 4.3. ORTO coordinates ODOT Section 10 permit requests Field Code Changed with the appropriate USACE district office, according to where the project is located. Deleted:
USACE Notice to Navigation A Notice to Navigation (NTN) must be submitted to USACE whenever an applicant is seeking to conduct certain types of work on navigation channels and some segments of Section 10 waterways. More specifically, a NTN is required for any temporary or
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When filing a NTN, the district or the contractor will submit the form to the USACE district office having authority over the water to be impacted and copy OES-WPU. The NTN form can be found in Appendix G. ORTO should also be copied on all NTN Field Code Changed submittals by ODOT. During the project development, ORTO is also notified of any ODOT project in proximity to a USACE project (i.e., lock and dam projects). ORTO will then assess if NTN is required. A NTN must be submitted to the USACE at least 2 weeks before the activity begins. If there is uncertainty whether a project will require a NTN, the district should alert OES-WPU as soon as possible.
2.8 USACE SECTION 408 PERMISSION Section 408 Permission A USACE Section 408 Permission is required for any alteration to a navigation channel within a USACE civil works project (also known as a Federal Project). This includes all work above and below the OHWM of the navigation channel within the Federal Project. Civil Works Projects can be identified within the USACE Navigation Charts (Appendix G) Field Code Changed for their respective Districts (Buffalo, Huntington, Pittsburg, and Louisville). Section 408 of the Rivers and Harbors Act of 1899 states the following:
“The Secretary of the Army may, on the recommendation of the Chief of Engineers, grant permission for the temporary occupation or use of any of the aforementioned public works when in his judgment such occupation or use will not be injurious to the public interest… the Secretary may, on the recommendation of the Chief of Engineers, grant permission for the alteration or permanent occupation or use of any of the aforementioned public works when in the judgment of the Secretary such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work.”
All Section 408 alteration requests are submitted to USACE Huntington by OES District, of which will be coordinate with the appropriate staff in their navigation division for review. For the purposes of the USACE review alter means any action by an entity other
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2.9 USCG SECTION 9 BRIDGE PERMIT AND CONDITIONAL APPROVAL LETTER Section 9 Bridge Permit A USCG Section 9 Bridge Permit is required for any project that proposes to construct or permanently modify a bridge or causeway’s horizontal and/or vertical clearance across a Navigable Waterway of the U.S. This includes all temporary bridges used for construction access or traffic detours. A list of Navigable Waterways of the U.S. is maintained by each USACE district.
USCG evaluates all Section 9 Bridge Permits and carefully considers the necessary horizontal and vertical clearances required for the maintenance of navigation. Project designers and bridge permit application preparers must coordinate with one another, as directed by ODOT-OES, to ensure that the project design and permit application meets bridge navigational clearance requirements.
USCG is required, by law, to ensure that all environmental considerations are given careful attention and importance in each bridge permitting decision. As part of these considerations, USCG and FHWA have entered into a Memorandum of Agreement for the Field Code Changed purpose of expediting and coordinating the planning, environmental review, and decision making for bridge permits. Additionally, USCG, FHWA, Federal Transit Administration, and Federal Railroad Administration have entered into a Memorandum of Understanding Field Code Changed for the same purpose.
Environmental documents and permits, including 401 WQC and the 404 IP, must be completed and authorized by the respective regulatory agencies and submitted to USCG. When projects affect interstate waters (e.g., bridges that span the Ohio River), a 401 WQC must be obtained both from Ohio and the adjacent state. USCG has published a manual Field Code Changed on how to complete Section 9 bridge permit applications.
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Maintenance/repair projects on bridges or causeways over Navigable Waters that do not permanently change the horizontal and/or vertical clearances (i.e., bridge painting, or some structural replacements) do not require a Section 9 Bridge Permit; however, these projects do require a Conditional Approval Letter from USCG. Chapter 6.2 provides more Field Code Changed information on these types of projects. See Chapter 6.3 for a list of Navigable Field Code Changed
Conditional Approval Letter When ODOT repairs or rehabilitates existing bridges over Navigable Waters of the U.S. without making permanent changes to the horizontal and/or vertical clearances of the structure, USCG must grant approval of the rehabilitation project prior to the commencement of the work. OES-WPU seeks this approval through early informal coordination with USCG. This early coordination ensures that marine traffic is aware of the work and allows USCG to provide conditions the contractor must adhere to in order to maintain the navigational integrity of the waterway. This coordination also allows USCG the opportunity to determine whether a Section 9 Bridge Permit is needed. For more information on conditional approval letters, see Chapter 6.2. Field Code Changed
2.10 OHIO EPA SECTION 401 WATER QUALITY CERTIFICATION (WQC) As indicated in Chapter 1.2 and Chapter 1.3, Ohio EPA authorizes projects which impact non-isolated aquatic resources (waters of the State) through the 401 WQC process. Any project requiring a 404 IP from USACE also requires a 401 WQC from Ohio EPA. As previously discussed, the 401 WQC can come in two forms: “pre-certification” 401 WQC, or a project-specific Individual 401 WQC. The "pre-certification" 401 WQC is a WQC (with conditions) that Ohio EPA issued on the NWPs or RGP. Essentially, if ODOT satisfies all the 401 conditions on the NWPs or RGP, the action is programmatically authorized. If the pre-certification 401 WQC are not met, or if the project is seeking authorization under a 404 IP from USACE, a project-specific Individual 401 WQC from Ohio EPA is required.
For some resources, it may not be clear if the project will meet a pre-certification or need an Individual 401 WQC. In these instances, additional data will be collected, and notification is sent to Ohio EPA to make the determination. See Ohio EPA’s 401 WQC website for more information.
For project-specific Individual 401 WQCs, Ohio EPA has a standard 401 application form. Chapter 5.1 describes the process for preparing the 401 application. If a project requires Field Code Changed Individual 404 and 401 permits, a combined application is typically submitted to both
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USACE and Ohio EPA for a concurrent review. Item 5 of the 401 application must address the requirements of ORC 6111.30, OAC 3745-32-03, OAC 3745-1-05 and OAC 3745-1-54. This Rule requires that comprehensive analysis is performed prior to any “lowering of water quality” being certified by Ohio EPA through the 401 WQC process. The alternatives analysis shall focus on the project purpose and a minimum of two alternatives are required. Typically, the alternatives considered will be on-site and off-site, with demonstrated on-site avoidance and minimization. If no off-site alternatives were evaluated, the application should include a justification as to why this part of the evaluation was not included.
For many ODOT bridge replacement projects, off-site alternatives are not considered. The amount and types of alternatives addressed in the application will be determined on a project by project basis during the permit strategy meeting. For more information see Chapters 4.2 and 5.1. Field Code Changed Field Code Changed All alternatives require a detailed analysis, which must include information related to avoidance, minimization, mitigation, magnitude of the proposed lowering of water quality, technical feasibility and cost effectiveness, social and economic considerations, cumulative impacts, indirect (secondary) impacts, and during construction and post- construction storm water management plans. Ohio EPA can authorize a project that “lowers water quality” but cannot authorize a project that results in the “loss of water quality”. An analysis of each alternative should be presented without appearing biased towards the selected alternative. The rationale for the selected alternative should be established in the permit strategy meeting so that the alternatives analysis provides a strong, fact-based justification for supporting the selected alternative.
The 401 WQC process involves a 30-day public notice that can only take place following the issuance of the USACE 404 public notice, unless the project is being authorized under a NWP or RGP. Ohio EPA will prepare a draft 401 WQC public notice. Publication of the Ohio EPA public notice is the responsibility of the applicant (see Chapter 5.4 for guidance Field Code Changed on Ohio EPA’s Public Notice Process).
Ohio EPA may hold a public hearing (either at the applicant’s request, a citizen’s request, or because the project has triggered an automatic public hearing requirement) which requires a 45-day public notice. Ohio EPA’s Director will issue a 401 WQC as long the following is fulfilled: the applicant has submitted a complete application, the applicant has provided evidence of appropriate mitigation, the project does not result in a more
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Following issuance of the 401 WQC, USACE then issues the 404 IP. In addition to other conditions, the 404 permit typically also assimilates the conditions of the 401 WQC as conditions of the 404 IP. As with all other permits, the conditions of the 404 permit and 401 WQC will be attached to the construction plans as special provisions.
Some projects may qualify for a Director’s Authorization from Ohio EPA and will not require an Individual WQC. For more information on the Ohio EPA’s Director’s Authorization process see Chapter 5.2. Field Code Changed
2.11 OHIO EPA ISOLATED WETLAND PERMIT (IWP) Isolated wetlands (wetlands which are not subject to USACE jurisdiction) are regulated by Ohio EPA under the Ohio’s Isolated Wetland Law. Under this law, impacts to isolated wetlands have three levels of review, depending on the quantity and quality of wetland impacts. Level 1 is the lowest, simplest level of review, while level 3 is the highest, most rigorous review for large area of impacts or impacts to high-quality (Category 3) wetlands. A General Isolated Wetland Permit (IWP) is issued for a level 1 review, while level 2 and 3 reviews will result in an individual isolated wetland permit. Chapter 5.3 and Appendix Field Code Changed C provide detailed guidance on completing the applications for Ohio EPA IWPs. Field Code Changed
An Ohio EPA IWP may be obtained as a standalone permit, provided the project only impacts isolated wetlands. However, if there are impacts to jurisdictional streams and/or wetlands in addition to impacts to isolated wetlands, there could be any variety of permits and permitting scenarios. The permit determination process flowchart in Appendix E Field Code Changed reveals the combinations of permits that could be required.
Note: a USACE jurisdictional determination (stating that the wetlands involved are isolated) is required prior to the submission of all levels of IWP application to Ohio EPA. As with all other permits, the conditions of IWPs are attached to the construction plans as special provisions. See Table 3.
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Table 3: A Summary of the Three Review Levels
ACRES OF OHIO EPA PUBLIC MANDATORY TYPE OF WETLAND POTENTIAL PERMIT TYPE OF NOTICE PUBLIC IWP CATEGORY WETLAND REVIEW PERMIT REQUIRED? HEARING? REVIEW IMPACT PERIOD 30 calendar General 1 or 2 0.5 acre or less No No Level 1 days* Permit more than 0.5 1 acre Individual Level 2 Yes 90 calendar more than 0.5 No Isolated Level 2 acre but less (20 day) days* 2 Wetland than or equal Permit to 3 acres more than 3 Yes Individual 2 No Level 3 acres (30 day) 180 calendar Isolated Level 3 Yes days* 3 any size Yes Wetland (30 day) Permit
* The permit review period begins on the date when Ohio EPA sends a letter documenting that the application is complete. (Source: http://www.epa.ohio.gov/dsw/401/permitting.aspx#116695787- procedures-to-get-an-isolated-wetland-permit)
General Isolated Wetland Permit - Level 1 Review The Level 1 Review allows for the filling of 0.5 acre or less of Category 1 or 2 isolated wetlands. For a Level 1 Review, the two-page General Isolated Wetland Permit Application (Level 1) and a mitigation proposal, in accordance with requirements set forth in the isolated wetland law, must be submitted. Once an application is submitted, Ohio EPA has 15 business days to review for completeness. Assuming the application is complete, Ohio EPA has 30 calendar days to make a permit determination and issue a general isolated wetland permit. Should 30 days expire and the application is complete, the law stipulates that the proposed activity is authorized under a general isolated permit, even though the applicant may not have received an actual “paper” permit from the agency.
Individual Isolated Wetland Permit - Level 2 Review The Level 2 Review is required for filling of greater than 0.5 acre of Category 1 isolated wetlands or greater than 0.5 acre, but less than 3 acres of Category 2 isolated wetlands. For a Level 2 Review, the General Isolated Wetland Permit Application (Level 1), the General Isolated Wetland Permit Application (Level Two), and a mitigation proposal must be submitted. For additional information, see the Ohio EPA Level 2 Review website. As a part of the Level 2 application, a limited alternative analysis is required. The Level 2 Review has a mandated 90-day review period from the time a complete application is submitted. However, unlike the Level 1 Review, an applicant cannot move forward with | 67
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Individual Isolated Wetland Permit - Level 3 Review A Level 3 Review is mandated for all impacts to Category 3 isolated wetlands and impacts to greater than three acres of Category 2 isolated wetlands. A Level 3 Review requires a complete 401 WQC submittal package including all seven items as listed in Chapter 2.10. For additional information, see the Ohio EPA Level 3 Review website. The Level 3 Review has a mandated 180-day review time period, from the submission of a complete application in which a permit determination shall be made by Ohio EPA. An applicant cannot move forward with the isolated wetland impacts until Ohio EPA issues the Individual Isolated Wetland Permit.
2.12 PERMIT MODIFICATIONS OES-WPU recognizes that changes can occur during the final stages of project design or during construction. These changes, including expanded construction limits, use of temporary stream crossings/workpads, or unexpected slip repair/erosion problems, may result in the need for additional waterway impacts. Impacts to surface waters beyond what are included in the originally approved permits require re-coordination with the resource agencies via a permit modification request letter. USACE and Ohio EPA consider this process a reauthorization of the impacts. ODOT-WPU calls this process a modification request. A permit modification is necessary before any impacts to additional waters can occur.
OES-WPU coordinates the permit modification request with the necessary agencies and requires the following items for coordination: • Qualitative and quantitative information on the resource(s) that will be affected, such as stream or wetland names or identifiers, use designations, wetland and stream qualitative assessment forms and scores, size of the resource, area/length of impact, and fill volume(s). • Proposed construction activities impacting the resource(s). • Photographs and data forms, if available. • Relevant drawings, such as plan view, profile, and cross-section showing the OHWM or wetland/upland boundary. This should include a detail sheet of any temporary fill/crossing proposed including the dimensions of the work pad,
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duration of the temporary fill, and drainage design through or around the temporary fill area. • For non-notifying projects a permit determination request must be revised and coordinated with OES-WPU to ensure the project still meets a non-notifying NWP Deleted: S or RGP.
Permit modification requests typically occur just prior to or during construction. OES- WPU makes every effort to prioritize these requests to the agencies to ensure expedited processing and to limit project delays. The modification request time frame will depend upon the extent of impact, the quality of the resources impacted, the need for public notice(s), and/or the need for additional mitigation to offset the new impacts. For modification of general permits, the USACE has 45 days from a complete request submittal to grant or deny the request.
In addition to projects that require changes to the amount of authorized impacts, there are other circumstances that may also necessitate a permit modification. For example, a modification could be requested for: changes to the language of a permit; requests for an extension to the expiration date of a permit; changes in the type of material used for impacts; and mitigation time frames, among others.
To initiate a permit modification, the ODOT project engineer contacts the district regarding the need to obtain the modification. The district then coordinates with OES- WPU to gather and organize the necessary information to submit to the applicable regulatory agency. Note that for changes on projects that required an individual 401 WQC Deleted: . or a DA from Ohio EPA, the two page application must be completed for the modification Deleted: require that request.
2.13 PERMIT NON-COMPLIANCE AND PERMIT VIOLATIONS Formatted: Heading 2,TrebHead2
ODOT is required to comply with all permit conditions during construction. Failure to Deleted: ¶ maintain compliance results in either a Non-Compliance or a Violation of the Clean Water Formatted: No Spacing,Georg11, Left Act. Non-compliance occurs when ODOT has a waterway permit, but unauthorized impacts or activities occur. A violation occurs when unauthorized impacts occur but ODOT does not have a waterway permit.
ODOT is required to report all non-compliance or violation instances to the USACE and Formatted: No Spacing,Georg11 OEPA. Districts must immediately report and address all instances of non-compliance to OES; OES will then immediately report the issue to the resource agencies. ODOT is | 69
Waterway Permits Manual required to bring the project into compliance as soon as possible. Please refer to Appendix D of the Environmental Commitments Manual for a detailed process of reporting and addressing waterway permit non-compliance and violations. Formatted: No Spacing,Georg11, Indent: First line: 0" Repercussions of non-compliance and violations are detrimental to ODOT’s program. Formatted: No Spacing,Georg11, Left Failure to maintain compliance can result in loss of federal funding and approvals, degraded public and agency relations, fines, project delays, loss of NEPA Assignment, criminal charges against individuals associated with the action, and environmental degradation.
Environmental compliance monitors can help reduce the risk of non-compliance and Formatted: No Spacing,Georg11 violations by performing observations during construction to catch potential problems before they become reportable issues. Monitors are not required on every project, but are recommended for higher risk projects, such as projects with sensitive resources (Scenic Rivers, Category 3 Wetlands, etc.) and individual permits. For more information on compliance monitoring, see Appendix C of the Environmental Commitments Manual. Deleted: ¶ ¶ ¶ ¶ ¶ ¶
Formatted: No Spacing,Georg11
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CHAPTER 3. PERMIT DETERMINATION PROCESS 3.1 PERMIT DETERMINATION REQUEST (PDR) SUBMISSION A permit determination is the process that ODOT uses to evaluate a project to determine what waterways permits will be required to meet the requirements of Sections 404 and 401 of the CWA, Section 9, Section 10, and Section 408 of the Rivers and Harbors Act, and the State of Ohio’s Isolated Wetlands Law. ODOT district environmental staff provide the first level of screening for projects during the permit determination process. Staff can determine whether or not aquatic resources subject to waterway permits are present and if a permit is even required. During the early stages of the PDP, the district environmental staff assess the overall surface water impacts to determine the general level of permitting that may be needed, which dictates the level of ESR that will be completed. If surface waters may be impacted, or are in proximity to the project, the district determines that a waterway permit(s) may be required. As soon as the ecological and Section 106 coordination and Stage 2 plans are complete, the district develops and submits a Permit Determination Request (PDR) to OES-WPU so that a permit determination can be completed.
The PDR can be produced by the ODOT district or a consultant. All PDRs are submitted by the district with the OES standardized Inter-Office Communication-Permit Determination Request form, indicating to OES which information is available and/or has been provided. The PDR form is an ODOT correspondence for which the district is generally responsible. For instructions on how to fill out the PDR IOC or a copy of the permit determination request form, see the OES-WPU website. The district submits the Field Code Changed PDR through EnviroNet to OES-WPU, which includes the following items: • Project Description; • Plan and Profile Sheets (with OHWM indicated); • Structure Detail Sheets (site plan and culvert detail sheets); • Cross Section Sheets (with OHWM indicated, only Cross Section Sheets where impacts to jurisdictional waters or isolated wetlands are proposed are required); • Temporary Construction, Access and Dewatering Activities checklist, if applicable; • A completed Permit Determination Table that includes all wetland, pond, stream, and jurisdictional ditch impacts.
Other items that are critical to OES’ review (see Chapter 1.6) should be performed Field Code Changed prior to submission of a PDR and uploaded to the EnviroNet system if applicable to the project:
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• Ecological Coordination (letters to and from the agencies) • Section 106 Coordination (SHPO coordination) • Evaluation of Potential Mussel Beds • Jurisdictional Determination (if isolated wetlands were anticipated and identified during the ESR process or if any notification to the agencies is required) • Discussion of whether streams are considered to be high quality waters per OAC- 3745-1.
The Temporary Construction, Access and Dewatering checklist is an important component in the permit determination process, as it outlines the types of temporary impacts that may occur on a project and whether ODOT flow requirements can be met, as outlined in the Location & Design Manual, Volume 2, Section 1012. Flow requirements are implemented later in the permit process as Special Provisions, which become part of the construction contract for ODOT let projects. It is essential that any challenges meeting these requirements are identified early, so that an alternative approach to managing water flows can be developed. The checklist must be completed by the design engineer.
Note: Upon request from the district, OES-WPU can provide a preliminary permit determination earlier in the PDP, before Stage 2 plans are available. This preliminary permit determination can act as a guide for the district when planning and scoping a project. Typically, the preliminary permit determination will be conservative, and the Permit Coordinator should point out any thresholds or impact(s) that could trigger an escalation of the permitting level. The district can use this information when discussing coordination requirements with the project managers and designers. The preliminary permit determination may include a field review of the project site that can occur during the ecological data collection. If a preliminary permit determination is provided, an official PDR must be submitted by the district to OES for review during the third phase of the PDP.
Determining Project Impacts to Aquatic Resources Subject to Waterway Permits When determining impacts to wetlands and streams, it is important to consider the federal definition of fill material. 40 CFR 232 defines fill material as any material placed in waters of the U.S. that has the effect of either replacing any portion of a water of the U.S. with dry land, or changing the bottom elevation of any portion of a water of the U.S. For ODOT projects, typical examples of fill activities may include roadway fills, culverts, bridge piers and abutments, bank stabilization projects, temporary construction access | 72
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For all impacts to aquatic resources subject to waterway permits, the area of impact below the OHWM or within the wetland boundary, the volume of fill below the OHWM or within the wetland boundary, and the linear footage and/or acreage of impact need to be calculated. The following section provides guidance on how to calculate these values for both temporary and permanent fill activities.
Detailed design information is often unavailable when the PDR is submitted to OES- WPU. However, if possible, it is important to consider any impacts that may result from a project’s construction access and staging area requirements, as well as any temporary sedimentation Best Management Practices (i.e. rock check dams) that may be installed into regulated surface waters during the course of project construction. Worst-case scenario impacts inclusive of such work areas should be estimated by the project designer in consultation with the project’s construction engineer so that all potential impacts can be accounted for in the PDR.
Determining Fill Material Surface Area (acres) Streams Include the area of permanent and temporary fill materials below the OHWM. For each type of fill material, the area of impact should be determined based on the greatest extent of the footprint of the fill area below the OHWM.
For bridge projects, the impact area only includes that material placed below the OHWM (such as concrete, piers, RCP, earthen backfill, and/or other fill activities below the OHWM). Note: the area of the bridge deck should not be included in the area of impact, as the bridge deck is above the OHWM.
Jurisdictional Ditches Include the area of permanent and temporary fill materials below the OHWM. For each type of fill material, the area of impact should be determined for the greatest extent of the footprint of the fill area below the OHWM. For bridge projects, the area of the bridge deck should not be included in the area of impact, as the bridge deck is above the OHWM.
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Wetlands The area of impact should include the acreage within the wetland boundary. For bridge projects, the area of the bridge deck should not be included in the area of impact, as the bridge deck is above the delineated wetland boundary.
Open Water (ponds, lakes, reservoirs) Include the area of permanent and temporary fill materials below the OHWM.
Determining Fill Material Volume (cubic yards) Streams Surface area of permanent and temporary fill materials below the OHWM multiplied by the average depth of flow at the OHWM elevation.
Jurisdictional Ditches Surface area of permanent and temporary fill materials below the OHWM multiplied by the average depth of flow at the OHWM elevation.
Wetlands Surface area of permanent and temporary fill materials within the wetland boundary multiplied by a one foot depth.
Open Water (ponds, lakes, reservoirs) Surface area of permanent and temporary fill materials below the OHWM multiplied by the surveyed depth.
Linear Feet of Impact Streams Impact length should be measured along the centerline, upstream to downstream. For projects with an existing culvert that is to be replaced, the length of the existing culvert should be indicated on the plan sheets and should be considered an impact; however, the length of the existing pipe and the length of the new impact (i.e., open channel to be placed in a culvert) is to be labeled separately since mitigation will not occur for the existing culvert length. See Appendix F for illustrating stream impacts in table format. Field Code Changed
Jurisdictional Ditches Linear footage is not required for jurisdictional ditches but may be included at the discretion of ODOT.
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Wetlands Not applicable.
Open Water (ponds, lakes, reservoirs) Not applicable.
When dredging or excavation horizontally extends the OHWM, impact values must include this extension of the OHWM. Projects will sometimes have overlapping fill types within the same linear stretch of waterway. For example, when measuring impacts upstream to downstream along a centerline, the linear feet of permanent impacts can fall within the linear feet of temporary impacts. See Chapter 4.1 for guidance on determining Field Code Changed impacts when fills overlap.
3.2 OES PERMIT DETERMINATION All PDRs submitted to OES are reviewed by WPU to determine the level of waterway permitting required (see Appendix E: OES Permit Determination Process Flowchart). Field Code Changed Projects are evaluated based on all applicable permit conditions and requirements including: • USACE 404 NWP specific conditions • USACE 404 general conditions • USACE 404 regional conditions • USACE RGP conditions • Ohio EPA 401 WQC conditions on the NWPs (Ohio State General Conditions) • Ohio EPA 401 WQC conditions on the RGPs • Ohio EPA ORC 6111.02: Isolated Wetland Law • USACE Section 10 conditions • USCG Section 9 • USACE Section 408
After determining the appropriate level of waterway permitting required, OES notifies the district of the permit determination. OES-WPU is provided 30 days to review a PDR and return a permit determination. The permit determination may be: • A determination that no waterway permits are required and no further coordination is necessary for waterway permits. • A final action by OES-WPU (i.e., a non-notifying NWP 3) in which the project is covered under a specific permit without agency coordination.
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• A determination that agency coordination and authorization under a waterway permit (or combination of permits) is required (i.e. a PCN for NWP 3). • A determination that additional information is required to make the permit determination.
For projects covered under a non-notifying RGP/NWP that do not require agency coordination, the “final” permit determination from OES-WPU will include Special Provisions containing applicable conditions and the RGP/NWP with associated general and regional conditions. For projects that require agency coordination and project specific authorization, the permit determination from OES-WPU will instruct the district to prepare a permit application for submission to OES-WPU for review. In this instance, the permit determination will note that no work can take place until a permit authorization(s) has been issued by the appropriate regulatory agency(s) and special provisions have been provided by OES.
When mitigation is required and/or an IP is determined to be required, the district should schedule a permit strategy meeting with OES-WPU. The permit determination provided by OES will instruct the district to schedule this meeting as well as the agenda of items that need to be discussed. The goals of this meeting are three-fold: 1. Develop the alternatives analysis that satisfies Section 404(b)(1). 2. Establish how mitigation will be conducted and completed. 3. Develop a permitting timeline and application process schedule.
3.3 SPECIAL PROVISIONS PROCESS Special Provisions is the method which ODOT uses to attach the conditions of waterway permits to the project construction plans. While there are standard permit requirements in the Special Provisions, the items can vary by project, permit type, and level of agency coordination. Special Provisions can also contain ODOT specific requirements, such as those developed for temporary access fills (TAFs). If a project is unable to meet ODOT’s standard requirements for TAFs, this condition must be modified in the Special Provisions document prior to providing to the district.
The Special Provisions are provided to the district to be attached to the construction plans before submittal to ODOT’s Office of Estimating. Special Provisions establish the Waterway Permit Conditions as enforceable components of the contract between ODOT and the construction contractor. Since the Special Provisions are included as part of the
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The Special Provisions, prepared by OES-WPU, contain the following: • Project specific title sheet • Standard and project specific conditions/provisions, including all pertinent waterway permit conditions stated in contract language • Agency approved impact tables, figures, resource drawings, completion certification and plan sheets (for projects where an application was submitted to and approved by the agencies)
Note: for ODOT-Let projects, if the project plans are filed at Central Office before permits are obtained, the district must file an addendum to the plans once the permit(s) and Special Provisions are available. For Local-Let projects, applicable permits must be obtained by the local project sponsor before filing.
Note: for projects involving USCG Section 9 permits, the district and designer is responsible for confirming that the bridge design plans meet the required navigational clearance, and that the amount of fill placed below the OHWM is consistent with the project waterway permit applications.
Note: aquatic resources must be clearly indicated on the engineering plan set (resource name and location). All plan sheet revisions required by the waterway permit process must be applied to the engineering plan set and not separately for the permit application.
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CHAPTER 4. U.S. ARMY CORPS OF ENGINEERS (USACE) APPLICATIONS 4.1 404 NWPS AND RGPS REQUIRING PRE-CONSTRUCTION NOTIFICATION (PCN) General Information Each NWP and RGP has general and regional conditions. When certain conditions are met or “triggered,” the applicant is required to submit a PCN to USACE to verify that the proposed project is covered under the specific NWP or RGP.
The following discussion is primarily focused on ODOT and ODOT-Let LPA projects in which agency coordination is conducted through OES-WPU (see Chapter 1.5 for more Field Code Changed information on the role of OES-WPU) and provides guidance on how to complete the USACE PCN Application - Engineer Form 6082 (Nationwide Permit Pre-Construction Deleted: standard Deleted: 4345 (Application for Department of the Army Notification) and submit it for review to OES-WPU. The most current Engineer Form Permit) should be used. This same application form is used for NWPs, RGP, and Section 10 Deleted: 404 IPs, Permits. In addition to the basic form, there are supplemental items needed for a complete PCN application. A PCN checklist is included in this section and details the materials to include in the application. For 404 IPs the Engineer Form 4345 (Application for Department of the Army Permit) should be used. See Chapter 2 for background Formatted: Underline, Font color: Blue information on the various types of permits issued by USACE. Field Code Changed
The USACE PCN must be electronically submitted to OES-WPU for review through EnviroNet. At no point should a consultant or district send an application directly to the agencies. The electronic DRAFT PCN uploaded to EnviroNet should be checked in as a “Draft” application.
Once the permit coordinator assigned to the project has reviewed the application, any comments or suggested revisions will be uploaded to EnviroNet with the same document name. A REVISED copy and a disposition of comments prepared by the consultant/preparer should be coordinated with OES. The final copy should be uploaded to EnviroNet with the same document name unless otherwise directed by OES. At any one time, there should only be one document of each type (i.e., Pre-Construction Notification) on EnviroNet. ODOT and consultants should always use the check-in/check-out feature when reviewing or revising documents. Upon resolution of all comments, WPU staff will mark the document as “Final” in EnviroNet. OES-WPU will then submit the application for review to the USACE. | 78
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For projects that require an Individual 401 WQC application (PCN with 401 WQC application or 404 IP and 401 WQC application), the district/consultant shall submit 2 (two) hard copies of the combined application and one (1) electronic copy for agency submittal. For projects that also require an IWP application, the district/consultant shall submit one (1) hard copy and one (1) electronic copy of the final application to OES for coordination with Ohio EPA.
Instructions for preparing a Pre-Construction Notification
For ODOT projects, see Appendix C for specific instructions on completing the USACE Field Code Changed PCN in a detailed and consistent manner. Additionally, USACE provides general Formatted: No underline, Font color: Auto instructions for completing the PCN form. See below for supplemental materials that are to be included with the PCN. Examples of PCNs are provided in Appendix D. Field Code Changed
Supplemental Information for a Pre-Construction Notification A significant component of the PCN submittal is the figures, drawings, maps, plan sheets, photos, agency coordination, and waterway resource data forms. Appendix D contains Field Code Changed several examples of permit applications, including a simple PCN for a NWP to more complex 404 IP applications. Refer to these examples for layout and format options, proper map scaling, titles, resource identification callouts, impact illustrations, photo- documentation, and mitigation discussion.
Much of the supplemental information required for the PCN may already be included in the ESR. For smaller or less complex projects where the ESR was not previously coordinated with USACE, including the ESR with the PCN submittal is acceptable (i.e., reference EnviroNet). Since the ESR contains most of the required supplemental information, time and effort spent on the PCN is reduced and unnecessary duplication of information is prevented. For larger and more complex projects, it is likely that OES- Ecological Unit coordinated the ESR with USACE, Ohio EPA, ODNR, and USFWS. In this case, when the PCN is submitted, the ESR does not need to be included. Since the agencies have the document, it can simply be referenced.
Note: ensure that the most up-to-date information is included in ESR. If more recent data are available, include the data in the PCN submittal and briefly note the difference between the new and old data.
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Pre-Construction Notification (PCN) Checklist This final checklist is an abridged description of items and information USACE requires in a PCN per Condition 32 of the General Conditions, Condition 6 of the Regional General Conditions of the NWPs in Ohio, and General Condition 28 of the RGP. This list may vary on a project-by-project basis. Additional information may be requested by OES-WPU and/or USACE to answer project-specific questions. For a complete guide to PCN submittals, see the NWP Public Notice LRH-201600006-OH issued March 21, 2017.
All PCN application packages should include the following information: • Complete current PCN application form – 6082 Nationwide Permit Pre- Construction Notification. Deleted: Form 4345 Application for Department of Army Permit. • Agency coordination (letters to and from ODNR and USWFS) should be included in the PCN. The ESR should be referenced as uploaded to EnviroNet and not included in the PCN. • Location and Site Maps: o USGS topographic map; o National Wetland Inventory map; o Soils map; o FEMA FIRM or FIRMette for fills within the 100-year floodplain. • Required Mapping, Figures, and Plan Sheets Checklist: o Current and consistent information on all mapping and plan sheets; o All waterbodies clearly marked (i.e., wetland boundary, stream OHWM, limits of construction, impacts); o All figures appropriately sized (i.e., 8.5 x 11 printable/legible); o All figures included in a 404 IP application legible if rendered black-and- white. • Impact Tables. o See Appendix B for impact table templates. Field Code Changed • Copies of Permits, Clearances, Coordination, and Agency Approvals (coordination with other agencies may be pending at the time of application submittal). o Cultural Resources coordination with SHPO or programmatic clearance documentation. o Preliminary Section 7 approval for projects involving National Scenic Rivers. o Ohio EPA 401 WQC, IWP, Notification, or stormwater Notice of Intent. • Compensatory mitigation plan to offset losses of waters of the U.S. (if necessary).
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• Temporary Fill Restoration Plan. o For projects that require temporary fill in aquatic resources, the PCN must include a restoration plan showing how all temporary structures and fills will be removed, and how the will be area restored and re-vegetated to pre- project conditions.
Required Mapping, Figures, and Plan Sheets for PCN Currently the USACE will accept color mapping, drawings, figures, and plan sheets in the PCN, since these are submitted electronically, however, they must be able to be rendered black and white. In addition, larger figures are acceptable in PDF format. In general, the following information must be provided on the mapping, drawings, and/or plan sheets: • Name of all applicable political boundaries/jurisdictions. • Names and numbers of all significant roads/highways in the vicinity of the project site. • County, Route, Section, and PID. • North arrow and Scale. • Location and identity of each aquatic resource(s) within the study area, right-of- way, or construction limits. o The name of the waterbody (i.e., Miller’s Run, Wetland 10, etc.) must be consistent with the rest of the application document. • Dimensions of proposed and existing structures that impact water resources need to be clearly labeled. • Ordinary High Water Mark (OHWM) limits should be clearly displayed for streams, rivers, and creeks. • The wetland boundary should be clearly displayed for wetlands (this also applies to lakes, ponds, and other non-linear features). • Locations of wetlands that will not be impacted but are adjacent to the project. o This can be shown on large scale maps (such as the aerial photo, topographic map, or soil map) to show that wetlands/streams were identified within a study area but are outside of construction limits. • Distance between proposed activity and Section 10 navigation channel (if applicable).
Schematic or overview plan sheet The schematic is an overview of the entire project.
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Plan and profile view plan sheet The plan view shows the proposed activity as if you were looking down on it from above. The profile view shows the activity as if you were looking at it from the side. Typically, ODOT plan sheets have the plan view and profile view on the same sheet. All aquatic resources must be depicted on the engineering plan sheets. This depiction includes the name and location of the aquatic resources as well as the OHWM for all jurisdictional streams.
Cross-section plan sheet The cross-section view shows the proposed activity as if it were internally cut for display. The OHWM must be shown as well as the boundary of wetlands and other waterbodies. If cross-sections showing aquatic resources are not available, typically they can be adequately identified on the profile and plan view.
Culvert detail plan sheet and structure site plan sheet These plan sheets typically show individual waterway crossings with a plan view and a profile view of the stream (as if you were downstream of the structure looking upstream at the waterway and the structure). The OHWM must be shown, as well as the boundary of wetlands and other waterbodies.
Temporary construction access fill(s) drawings Plan sheets must include a plan view and should identify the “worst case scenario” footprint for TAFs to provide flexibility for a contractor’s design. For project’s proposing to impact a scenic river, additional design details may be required.
Stream and/or wetland mitigation plan sheet When ODOT’s proposed mitigation plan includes an established ODOT-pooled mitigation site or IRT-approved mitigation bank or in-lieu fee program, stream and/or wetland mitigation plan sheets are not required. Only the ODOT balance sheet, mitigation bank agreement, or in-lieu fee program agreement needs to be included in the PCN. If the development of a permittee-responsible mitigation project is being proposed, the plan sheets should include features such as the planting plan notes, planting schematic, mitigation area cross-sections, plan views, profiles, and proposed easement boundaries. Additional information regarding permittee-responsible mitigation can be found in Chapter 7. Field Code Changed
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Tables The tables included with the PCN are extremely important to USACE, as they provide a detailed breakdown of impact types (concrete, RCP, sheet piling), fill duration (permanent vs. temporary), impact amount (length, acres, cubic yards), indicate overlapping fills such as previously impacted areas (culverts that are being replaced vs. extended), demonstrate avoidance of aquatic resources (total amount vs. impacted amounts), and calculate mitigation requirements based on appropriate ratios.
Specific instructions for filling out the tables are located in Appendix B. The tables were Field Code Changed developed from coordination between the agencies and OES-WPU. Since each project is unique, the tables can be modified slightly to fit the needs of the project. However, certain aspects of the table must be included based on the needs of the agency’s decision-making process. Templates are included in the appendices that address streams, wetlands, jurisdictional ditches, and “other waters”; if only one type of aquatic resource exists on a project site, the other tables can be omitted and the titles should be relabeled.
Note: The table templates located in Appendix B include both the PCN tables and those Field Code Changed required for a Section 401 WQC. Not all tables provided in the Appendix are required for a PCN for a NWP or RGP. If the application for a Section 401 WQC is submitted in conjunction with a USACE PCN or 404 IP application, the tables should be titled accordingly (e.g., Combined USACE 404 IP and Ohio EPA 401 WQC).
4.2 USACE SECTION 404 INDIVIDUAL PERMIT (IP) The USACE 404 IP utilizes the same PCN form as described in the previous section. However, additional information will be required in support of USACE’s Section 404(b)(1) Alternatives Analysis and the development of USACE’s final decision document. For instructions on completing the PCN application form and identifying what basic supplemental information is required in an application, refer back to the instructions in Chapter 4.1 and in Appendix C. For the 404 IP, note that there is additional Field Code Changed information required that may alter the format of the submitted document.
If a USACE 404 IP is required for a project, an Ohio EPA individual 401 WQC will also be needed. This is a result of the combination of impact thresholds established by Ohio EPA and USACE. In cases where both permits are required, OES-WPU requires that the 404 IP application and 401 WQC be submitted concurrently in a single, joint document. Ohio EPA 401 WQC application meets the requirements of the USACE 404 application.
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Combining the applications allows for both agencies to concurrently review the project. The Ohio EPA’s 401 application includes the USACE 404 alternatives analysis. The alternatives analysis will focus on the project purpose and will require a minimum of two alternatives. Typically, these alternatives will be an off-site alternative and an on-site alternative. The amount and types of alternatives will be determined on a project by project basis during the permit strategy meeting. See Chapter 5.1 for more information Field Code Changed on the Ohio EPA’s 401 WQC process.
Note: ODOT will typically refer to this combined document as the “401/404 Individual Permit” application since they share the same application components.
Application Submittal and Review The USACE 404 IP must be electronically submitted to OES-WPU for review through EnviroNet. At no point should a consultant or district send an application directly to the agencies. The electronic DRAFT 404 IP uploaded to EnviroNet should be checked in as a “Draft” application.
Once the permit coordinator has reviewed the application, any comments or suggested revisions will be made in EnviroNet and the appropriate district will be notified. One (1) REVISED copy and a disposition of comments prepared by the consultant/preparer should be provided to OES. The revised copy should be uploaded to EnviroNet unless otherwise directed by OES. At any one time, there should only be one document of each type (i.e., 404-401 individual permit application) on EnviroNet. ODOT and consultants should always use the check-in/check-out feature when reviewing or revising documents.
Upon resolution of all comments, the WPU will mark the document as final in EnviroNet and the district and/or consultant will be instructed to submit two (2) FINAL hard copies of the final combined 404/401 application.
USACE Decision Making Process and Public Notice Checklist The materials included within the 404 IP application are critically important for USACE to complete its Decision Document in support of a final permit. Ensuring that all necessary materials are included within a complete 404 IP application will aid USACE in issuing a PN for the project and will ultimately facilitate a faster review of the application and quicker issuance of the permit. Specific information and supporting materials must
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• All activities that the applicant plans to undertake which are reasonably related to the same project and for which a Department of Army permit would be required should be included in the same permit application. For example, a permit application for a marina will include dredging required for access as well as any fill associated with construction of the marina. • If the activity would involve dredging in Navigable Waters of the U.S., the application must include a description of the type, composition, and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material. • For activities involving discharges of dredged or fill material into waters of the U.S., the application must include a statement describing how impacts to waters of the U.S. are to be avoided and minimized. The application must also include either a statement describing how impacts to waters of the U.S. are to be compensated or a statement explaining why compensatory mitigation should not be required for the proposed impacts (see 33 CFR 332.4(b)(1)).
4.3 USACE SECTION 404 WAIVER REQUESTS For NWPs 13, 21, 29, 36, 39, 40, 42, 43, 44, 50, 51, 52 and 54 the USACE district engineer can grant a waiver to exceeded criteria (i.e. thresholds) if the district engineer determines that the proposed activity will result in minimal individual and cumulative adverse environmental effects. Of these NWPs ODOT often uses NWP 13 (Bank Stabilization). For bank stabilization projects three criterion have the potential to be waived: Criterion (b) restricts the length of the activity to 500 linear feet; Criterion (c) states the activity cannot exceed an average of one cubic yard per running foot; and Criterion (d) prohibits the discharge of dreaded or fill material into special aquatic sites (wetlands).
A PCN must be submitted to USACE to request a waiver of one or more of these criteria. Mitigation for the impacted resources will likely still be required. Discussion in the PCN document should include an explanation for the waiver request.
Some questions to consider when writing the explanation are: • Discuss which criterion will be exceeded? • How the proposed activity will result in only minimal individual and cumulative effects. • Are there any environmental benefits resulting from the project? (i.e., stabilizing an eroding bank to cease or minimize sediment input into a waterway?
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• Discuss any on site measures above and beyond normal Best Management Practices (BMP) (i.e. natural channel design elements).
If a waiver is requested the district engineer may still require an individual 404 permit if the request is denied. No in water work can commence until the district engineer grants the waiver or until an individual permit has been authorized. Note: if a project receives a waiver from the USACE the project will require an individual WQC from Ohio EPA. In some instances, a similar waiver request can be made for and individual 401 WQC called a Director’s Authorization. See section 5.2 for Ohio EPA Director Authorizations
4.4 USACE SECTION 10 PERMITS The application form for a Section 10 permit is identical to the application form used for the PCN described in Chapter 4.1. For more background on Section 10 permits, refer to Chapter 2.7. A notice to navigation may also be needed with a Section 10 permit. To Field Code Changed determine if a waterway in Ohio is considered a Section 10 water, see the USACE district links below: Buffalo District - Section 10 Waters Formatted: Indent: Left: 1.06" Huntington District - Section 10 Waters Pittsburgh District - Section 10 Waters Louisville District - Section 10 Waters Field Code Changed
4.5 USACE SECTION 408 PERMISSION The mission of the USACE Section 408 program is to provide safe, reliable, efficient, effective, and environmentally sustainable waterborne transportation systems for movement of commerce, national security needs, and recreation. In order to grant permission under Section 408 of the Rivers and Harbors Act of 1899, USACE must determine that the proposed alteration does not impair the usefulness of the USACE project, which includes retaining the project’s authorized purpose and ensuring the project will not be injurious to the public interest. In order to authorize an ODOT project under Section 408, USACE must review the proposed work to ensure it will not create unsafe commercial navigation or significant environmental impacts.
ODOT must coordinate with USACE Huntington District for all projects that will occur over, under, or within a USACE Civil Works Project (i.e. maintenance activities, fender replacement, deck replacement, etc.). USACE will issue a Section 408 Permission, provided the proposed project will not impair the usefulness of the Federal Project nor be
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Per the USACE Engineer Circular (EC 1165-2-220) projects that will likely alter the Federal Project, the Section 408 Request Form should include detailed information on the proposed activity that will affect the Federal Project, and a brief description of any other activities proposed as part of the ODOT project. In addition to the form, ODOT will also submit supplemental information, including: • Purpose for Request to Alter Federal Project: This section must include a detailed discussion of why the proposed work is necessary and any alternative methods considered. Any associated work should be mentioned, but the focus should be on the activity(ies) directly altering the Federal Project. • Description of Work in Federal Project: This section should focus on the activity altering the channel with a brief discussion of any other work and should include: o Any construction operations that need to be coordinated o Original and proposed dimensions and discussion of design o Any special work or circumstances • Impacts to the Federal Project: describe what impacts are proposed and the location (river points from the appropriate Condition Survey and channel corner coordinates), o Contingency Plan: description of actions to be taken if any materials fall into the shipping channel and a table summarizing the proposed discharges. • Timeframe Work is to be Accomplished • Conclusion • Project Location Map • Aerial Photograph • Plans • Project Condition Survey Feature (located on the Navigation Chart (Appendix G) Field Code Changed webpages) • Photographs (if applicable)
Refer to the example Section 408 Request in Appendix D. Once OES-WPU considers an Field Code Changed application complete, they will coordinate the request with USACE. Once USACE completes their review, they will authorize a Section 408 Permission for the proposed work, which may include specific conditions that ODOT must adhere to for compliance. | 88
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For USACE to comply with their mission, ODOT must submit notification for all work that occurs over a Federal Project, even if that work will not impact the navigation channel (e.g. bridge painting or deck replacement). ODOT will submit a Section 408 Request Form and USACE will review the submittal to ensure the proposed project will not result in negative impacts to the navigation channel or the environment.
OES-WPU will review all PDRs and determine if Section 408 coordination is required. If so, OES-WPU will provide the District with the Section 408 Request Form. Either District staff or a consultant can complete the form. Most ODOT projects in the vicinity of Federal Projects consist of maintenance work over a navigation channel. These projects still require coordination and permission from the USACE, however the request does not require as much detail as the projects that are altering a Federal Project. ODOT should complete the Section 408 Request Form with enough detail that USACE can accurately review a proposed project and provide any necessary conditions. At a minimum, ODOT should include plan sheets, but project location maps and photographs can be useful as well. See the example Section 408 Request Form in Appendix D. Once OES-WPU Field Code Changed considers the Form complete, they will submit it to USACE. ODOT can proceed once USACE provides the Permission, which may include specific conditions to ensure the work does not alter or impact the Federal Project.
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CHAPTER 5. OHIO ENVIRONMENTAL PROTECTION AGENCY (OHIO EPA) APPLICATIONS 5.1 APPLICATION FOR OHIO EPA SECTION 401 WATER QUALITY CERTIFICATION General Information The information provided with the 401 WQC application is used to evaluate the project for certification and is a matter of public record. If the application lacks information necessary to demonstrate the criteria set forth in ORC 6111.30, OAC 3745-32-03 and OAC Formatted: No underline, Font color: Auto 3745-1, then Ohio EPA will inform the applicant in writing of the additional information Formatted: Font color: Auto that must be submitted. See Ohio EPA’s 401 WQC website for more information. Note: Ohio EPA, like USACE, has a separate notification process per condition E.2 of the Ohio EPA Nationwide Certifications General Condition 32(b) and Regional General Condition 6 (see Chapter 2.4 for more information). Field Code Changed
Application Submittal and Review The 401 WQC application must be electronically submitted to OES-WPU for review through EnviroNet. At no point should a consultant or district send an application directly to the agencies. The electronic DRAFT 401 WQC application uploaded to EnviroNet should be checked in as a “Draft” application.
Once the permit coordinator assigned to the project has reviewed the application, any comments or suggested revisions will be uploaded to EnviroNet under the same name. A REVISED copy should be uploaded to EnviroNet under the same name by the preparer/consultant and a disposition of comments should be coordinated with OES. At any one time, there should only be one document of each type (i.e., 404-401 individual permit application) on EnviroNet. ODOT and consultants should always use the check- in/check-out feature when reviewing or revising documents.
Upon resolution of all comments, the WPU will mark the document as final and the district and/or consultant will be instructed to submit two (2) FINAL hard copies of the 401 application to OES-WPU. OES-WPU will then submit the application for processing with Ohio EPA. Note: If a USACE Section 404 IP or NWP/RGP with PCN is also required, it should be submitted concurrently with the Ohio EPA 401 WQC application as one combined document. Only the Ohio EPA IWP is submitted separately as a stand-alone document.
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Instructions to Prepare an Application for Ohio Environmental Protection Agency Section 401 Water Quality Certification: In 2017, Ohio EPA revised the format and content required for a 401 WQC application. A detailed instruction manual outlining how to prepare the 401 WQC application according to Ohio EPA requirements was also created. The content listed below represents an overview of the requirements for the 401 WQC application contained within Ohio EPA’s instruction manual. Additional information regarding the application materials for 401 WQC applications and instructions on how to prepare a 401 WQC Application are presented in Appendix C. An example of a completed Ohio EPA Section 401 WQC Field Code Changed application that includes a joint USACE Section 404 Permit can be found in Appendix D. Field Code Changed
Ohio EPA requires that the application package be organized in the following systematic manner. Each “item” is required to be separated by a divider with a labeled tab. For example, the tabs should be labeled “Application Form,” “Impact Tables,” etc., not “Item 1,” “Item 2.” • Item 1: Two-page 401 WQC application form • Item 2: Stream and/or Wetland and/or Lake Impact Tables (in the form of ODOT’s impact tables, as provided in Appendix B) Field Code Changed • Item 3: Waters Delineation Report (in the form of the project’s ESR) o Site photographs o Ohio Rapid Assessment Method (ORAM) forms (ten-page form) o Qualitative Habitat Evaluation Index (QHEI) forms o Appropriate biological sampling information • Item 4: Correspondence o Item 4a – USACE Jurisdictional Determination o Item 4b – USACE Public Notice or NWP/RGP o Item 4c – ODNR - Threatened and Endangered Species Coordination o Item 4d - USFWS – Threatened and Endangered Species Coordination o Other coordination, as necessary • Item 5: Proposed Project Antidegradation Analysis • Item 6: Proposed Project Mapping • Item 7: Proposed Mitigation Plan
Ohio EPA will consider an application incomplete and will not proceed with a technical review unless the above listed format is followed.
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Item 5, the proposed project’s antidegradation analysis, presents a detailed narrative of the project that provides Ohio EPA (and USACE for joint 404/401 applications) with the necessary information to evaluate the project’s impacts and alternatives considered. The antidegradation analysis is the most critical portion of the 401 WQC application. Item 5 must address the requirements of 40 CFR Part 230, OAC 3745-32- 03, OAC 3745-1-05 and OAC 3745-1-54. The following information is taken from Ohio EPA’s 401 WQC application completion and submittal instructions. • Project Purpose and Description of the Project: narrative description of the proposed project and a statement of the project purpose. This section is the basis for which and how many alternatives a project may have. It is important to discuss specific details but not so much that it will adversely restrict alternative selection. In this section discuss the project schedule and give a brief description of any related activates to be developed as a result of the proposed project. • Analysis of Practicable Alternatives and Demonstration of Avoidance, Minimization, and Mitigation: this section will address the USACE 404(b)(1) requirements discussed in Chapter 4.2. Provide analysis of a minimum of two alternatives (usually one on-site and one off-site alternative) considered during the project planning process. The alternatives must either have no impacts to aquatic resources or would result in other impacts to aquatic resources. The alternatives analysis are grouped into 4 steps: 1. Define Project Purpose 2. Make a water dependency determination 3. Identify alternatives 4. Assess practicable alternatives to identify a least environmentally damaging practicable alternative • Avoidance: narrative description of the avoidance considerations given to the project. Items to consider include: o How could the project be implemented without affecting water resources? o How could the project be redesigned to fit the site without affecting water resources? o How could the project be made smaller while still meeting the purpose and need? o What other sites were considered? What geographical area was searched for alternative sites? o How did you determine whether other non-wetland sites are available for development in the area? o What are the consequences of not building the project? | 92
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o Are there logistical (location, access, transportation) reasons that limit the alternatives considered? o Are there technological limitations for the alternatives considered? o Are there other reasons certain alternatives are not feasible? o Why is complete avoidance of water resource impacts not practicable? When evaluating these criteria, the overall project design and footprint, and the ways in which the project is related to sensitive environmental features (such as Category 2 or Category 3 wetlands) shall be discussed. • Minimization: Per OAC 3745-1-54 (D)(1)(b) and (c) minimization must be demonstrated for category 2 and category 3 wetland impacts. The following criteria must be assessed for each project: o The Spatial requirements of the project o The location of existing structural or natural features that may dictate the placement or configuration of the proposed project; o The overall and basic purpose of the project and how the purpose relates to the placement, configuration or density of the project; o The sensitivity of the site design to the natural features of the site, including topography, hydrology, and existing flora and fauna; and o Direct and indirect impacts. Describe in detail how the project has been modified to minimize impacts to water resources on site. Minimization often refers the reduction in the size or area of the impacts, but may also mean: impacting a lower quality resource when high-quality resources are located on site; use of best available technologies and designs that are implemented specifically to address water quality on site; use of native vegetation or bio-engineering techniques for bank stabilization; structural selections that are low impact (e.g., three-sided box culvert); modifications of the project’s design; use of stormwater BMPs; or other measures taken to maintain and/or improve lost water functions on site that goes above and beyond the post- construction BMPs required. • Mitigation: for impacts that cannot be avoided nor minimized mitigation must be provided. Compensatory mitigation is to replace the lost functions and values which have incurred as a result of the project. The proposed mitigation should be “in-kind” and the location and ratios of the mitigation must be in compliance with OAC 3745-1-54 and 33CFR Part 332 (or 40 CFR Part 230). The goals of mitigation must be specific, measurable and attainable within a specified timeframe. Typically, the objective is to provide a minimum of functional replacement, i.e. no net loss of functions, with an adequate margin of safety to reflect anticipated
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success. A be rationale for mitigation site selection and goals will need to be provide. The mitigation plan should be submitted as Item 7 in the 401 WQC application. • Magnitude of the Proposed Lowering of Water Quality: describe in detail the direct impacts to streams and wetlands on the project site. This discussion should include: o The linear footage or acreage of aquatic resources that will be impacted (permanent and temporary), along with the quality of resources; o Loss of habitat within affected portion of aquatic resources; o Potential impacts to biota and aquatic community structure including impacts to rare, threatened, and endangered species; o Rarity of aquatic resources within the locality of state (i.e., category 3 wetlands, class 3 stream); o Elimination, decline, or change in the aquatic species composition. Ohio EPA may request biological monitoring on a case-by-case basis. o Effects of the impact on human health and welfare; and o Effects of the impacts to economic value of the waterbody for recreation, tourism, other commercial activities, aesthetics, or other use and enjoyment by humans. Reference ESR ecological coordination, as appropriate. Water quality benefits of the project should be discussed, as appropriate. For example, will the project benefit aquatic resources and organisms by repairing a failing stream bank that is contributing increased sediment load and degrading downstream receiving waters? • Technical Feasibility and Cost- Effectiveness: discuss in detail the technical feasibility of the project including any required technology, resources necessary, and the availability of the required technology and resources. Then discuss the economic and operational feasibility of the project. Discussion points should include the one-time construction costs (wages, equipment, materials), and recurring operation and maintenance costs (wages, supplies). • Social and Economic Considerations: discuss in detail the condition of the local economy, the number and types of new direct and indirect jobs to be created, and state and local/state tax revenue to be generated. This could include information regarding local unemployment rates, poverty rates, household income information, major employment sectors, and employers in the county/area. Discuss if any businesses or residences would be positively or negatively impacted
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by the proposed project. Discuss how this proposed project might improve, have a negative impact on, or not affect the above factors. • Cumulative Impact: describe the impacts proposed in the context of other past, present, and reasonably foreseeable future development in the watershed. Discuss spatial and temporal aspects of both direct and indirect impacts to water resources within the watershed. Ohio EPA recommends an applicant examine, to the extent possible, other impacts that have occurred or will occur on the resource(s) proposed for impacts. If past impact(s) have occurred, what has been the known effect on the water resource? What was the magnitude and extent of past impact(s)? How will this proposed impact affect the waterbody, in addition to past impacts? Will a new proposed road or intersection spur additional development that may impact ecological resources in the area? Discuss how proposed mitigation will offset the proposed impacts to aquatic resources. Inquire with local entities about future development plans, if available. This information may also be available in the NEPA document. • Indirect (Secondary) Impact: describe indirect impacts associated with activities proposed on the project site. When considering indirect impacts to streams and wetlands, consider impacts outside of the area of direct impacts. For streams, this includes examining potential adverse impacts to physical habitat and aquatic species both upstream and downstream from the footprint of the project. Types of indirect impacts include but are not limited to, creating a barrier to the movement of aquatic organisms, elimination or reduction of riparian buffers, or creating instability, resulting in aggradation or degradation to the stream bed. Some items to consider: o Indirect changes in streambed slope, cross sectional dimension or area, vegetation and/or surfacing; o Changes in the drainage patterns; o Potential impacts to on-site and downstream waterbodies, including groundwater; o Temporary or permanent dewatering or water diversions; and o Indirect impacts to wetlands include loss of buffer, elimination of wetlands functions and values described in OAC 3745-1-51 through the loss of buffers, changes in wetland hydrology, etc. o How will the proposed mitigation plan address indirect impacts? • During Construction and Post-Construction Storm Water Management Plans: describe the necessary plans to manage stormwater runoff during construction and post-construction of the project. Provide details on all best
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management practices that are anticipated to be used, all sediment/detention/retention basins to be used stormwater quality improvement features to be incorporated into the stormwater plans, and all stormwater discharge points. Discuss potential issues with energy dissipation and erosion controls. Reference ODOT’s temporary sediment and erosional control measures during construction (SS 832) and post-construction stormwater management plan. To the extent known, include discussion of general BMPs, Stormwater Pollution Prevention Plan requirements, and estimated stormwater control costs (provided by the project engineer). Submit conceptual plans if engineered drawings are not available. For ODOT projects, detailed construction plans of these features are unavailable at the time of application development, as the contractor will develop the SWPPP after the project is awarded. However, they can be estimated, to some extent, by the project designer.
5.2 OHIO EPA DIRECTOR’S AUTHORIZATION (DA) If a project exceeds the thresholds for meeting certification but will have minimal impacts on water quality a Director’s Authorization (DA) may be pursued. Ohio EPA may grant coverage under the 2017 NWP certification, RGP 401 certification or when the Ohio EPA Director has been granted authority to waive certain requirements. Coverage may be granted when Ohio EPA determines that a project will have such a minimal impact on water quality that an individual 401 WQC is not necessary provided all other terms and conditions have been met.
Ohio EPA will require the applicant to propose a mitigation plan that compensates for impacts to streams and wetlands even if the USACE does not require mitigation. Because a DA cannot contain project specific conditions, the applicant must request that the USACE condition the 404 permit to include the proposed mitigation. For ODOT projects, Ohio EPA can consider non-traditional mitigation proposals, such as post-construction BMPs and bioengineering techniques. Also, Ohio EPA will not require wetland mitigation if impacts are less than 0.1 acre.
Ohio EPA may grant coverage if the project is consistent with the special limitations and conditions for the appropriate certification, and after considering comments received on the requested Director’s Authorization. If the DA is not granted, then an individual 401 WQC must be obtained. The DA will not exceed any impacts quantities authorized by USACE. See Chapter 4.3 for USACE waiver requests. Field Code Changed
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DA procedures are outlined in Appendix A of the 2017 Ohio EPA NWP Certifications and requires the following: • Director’s Authorization Request form; • USACE PCN (see Chapter 2.2) or provisional USACE 404 NWP authorization Field Code Changed letter, if needed; • Approved USACE mitigation plan or mitigation plan that off-sets proposed impacts • Description of each condition in the certification that will not be met; • Description of any NWP terms and conditions, including impacts limits that the USACE district engineer has waived; • Justification on how the project will minimally impact water quality for each resource that does not meet one or more of the terms and conditions of the certification, including why impacts to the resource (s) are unavoidable; • ODNR and USFWS comments; • For impacts to category 3 wetlands, a detailed description of how the project meets public need; and • ORAM Verification and Stream Eligibility determination documentation and any other documentation which may be required under the certification. • Associated fee for applicants other than ODOT
During the permit determination process, ODOT-WPU will decide if pursuing a DA is appropriate for a particular project. For more information on PDRs see Chapter 3.
5.3 OHIO EPA ISOLATED WETLAND PERMITS (IWPS) General Information
Chapter 2.11 provides an overview and description of Ohio EPA’s Isolated Wetland Permit Field Code Changed (IWP) process. The following discussion presents guidance on how to prepare the Ohio EPA General IWP Application (Level One Review) and the Ohio EPA Individual IWP Application (Level Two Review).
The Individual IWP Application (Level Three Review) is essentially a 401 WQC application (See Chapter 5.1) plus the materials required for the Level One and Level Two Reviews as described below. An Ohio EPA IWP application must be completed whenever a proposed activity impacts an isolated wetland within the State of Ohio in accordance with ORC Section 6111.02. The General IWPs are valid for 2 years (ORC 6111.022 (E)). The Individual IWPs are valid for 5 years.
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The information provided with an Ohio EPA IWP application will be used to evaluate the project for certification and is a matter of public record. If the application lacks information necessary to demonstrate the criteria set forth in OAC 3745-32-05 (A) and OAC 3745-1, then Ohio EPA will inform the applicant in writing of the additional information that must be submitted.
Application Submittal and Review An IWP application must be a stand-alone document. A General IWP application (Level One Review), or Individual IWP application (Level Two Review), shall be separately submitted from a project’s Ohio EPA Section 401 WQC application and/or USACE Section 404 Permit Application.
The IWP application must be electronically submitted to OES-WPU for review through EnviroNet. At no point should a consultant or district send an application directly to the agencies. The electronic DRAFT IWP application uploaded to EnviroNet should be checked in as a “Draft” application. At any one time, there should only be one document of each type (i.e., isolated wetland permit application) on EnviroNet. ODOT and consultants should always use the check-in/check-out feature when reviewing or revising documents.
Once the permit coordinator assigned to the project has reviewed the application, any comments or suggested revisions will be uploaded to EnviroNet under the same name. A REVISED copy should be uploaded to EnviroNet under the same name by the preparer/consultant and a disposition of comments should be coordinated with OES.
Upon resolution of all comments, the WPU will mark the document complete and the district and/or consultant will be instructed to submit one (1) FINAL hard copy to OES- WPU.
Instructions for preparing Ohio EPA General and Individual IWP Applications Ohio EPA has developed instructions for completing a General IWP Application (Level One Review). Additional information regarding the application materials for IWP Applications (Level One and Level Two Review) and instructions on how to prepare an
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IWP application are presented in Appendix C. An example of an Ohio EPA General IWP Field Code Changed application (Level One Review) can be found in Appendix D. Field Code Changed For impacts exceeding 3 acres of Category 2 isolated wetlands or any impacts to Category 3 isolated wetlands, an Individual IWP Level Three Review is necessary. This submittal includes the Ohio EPA Section 401 WQC Application.
Per ORC 6111.022, the following items are required to be submitted with an IWP application. • Maps showing project footprint and wetlands o This requires two (2) maps: a mapping/plan sheet that clearly displays wetlands and impacts; and a topographic map showing project location in 8.5 x 11 format. A separate USGS topographic map is unnecessary if it is included in the wetland delineation map. • Wetland delineation o A wetland delineation report and map of the USACE-approved wetland delineation as performed in accordance with the 1987 USACE wetland delineation manual and appropriate wetland supplement. • USACE approved jurisdictional determination o USACE Isolated Wetland Determination (JD). • Wetland categorization (including 10-page ORAM sheets) o ORAM version 5.0 (or most current version) scoring forms for wetlands. • Site photographs o Photographs (with photograph location mapping) of each isolated wetland included in the application. • Mitigation proposal (including mitigation bank credits or in-lieu fee documentation if appropriate) o An acceptable mitigation proposal must be provided in accordance with ORC 6111.022 (D) and 6111.027. If a mitigation bank or in-lieu fee is proposed, the proposal must include documentation of reservation or purchase of credits from the mitigation bank or in-lieu fee sponsor.
Note: submission of a check for the application and review fees is not applicable to ODOT.
5.4 OHIO EPA PUBLIC NOTICE AND PUBLIC HEARING PROCESS Ohio EPA is responsible for composing the public notice for the applicant or, if applicable, the public notice for the public hearing for 401 WQC Applications. Public notice | 99
Waterway Permits Manual requirements are outlined in the Applicant Public Notice Instruction Sheet revised January 9, 2015. Ohio EPA will send a draft public notice for OES-WPU review. OES- WPU works directly with the respective district to publish the public notice in a local (Ohio EPA-approved) paper, and coordinates proof of the published public notice to Ohio EPA when available. The applicant is responsible for publication costs, specifically ODOT district offices. Appendix E contains a flowchart documenting this process. Field Code Changed
Some projects may automatically require a public hearing, in which case they would require a public notice for public hearing. Per OAC 3745-1-05, within 90 days of receipt of the application, Ohio EPA shall hold a public hearing for any permit application, Section 401 WQC application, or IWP application (covered by paragraph (B)(1) of OAC 3745-1-05) whenever a water body is categorized as: 1) an outstanding national resource water, 2) an outstanding state water, 3) a superior high-quality water, 4) or Category 3 wetland and affected. This public hearing shall occur for the purpose of evaluating public concerns and comments related to lower water quality. The hearing shall be held prior to and separate from a public hearing on the proposed or draft action on the application.
Per OAC 3745-1-05, for general high-quality waters other than Category 3 wetlands and for limited quality waters, Ohio EPA shall hold a public hearing for any permit to install application, national pollutant discharge elimination system (NPDES) permit application, Section 401 WQC application, or State isolated wetland permit application (covered by paragraph (B)(1) of OAC 3745-1-05) whenever Ohio EPA determines that there is significant public interest.
Beyond what is required by OAC 3745-1-05, ODOT may also request a public hearing at the beginning of the application submittal process in the case of projects they believe will have significant public interest, or opposition. ODOT can be preemptive and schedule a public hearing at the time of the original PN in the interest of saving time. Rather than have two separate public notices (one for the application and one to address a requested public hearing), ODOT can assume the need for a public hearing from the start.
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CHAPTER 6. UNITED STATES COAST GUARD (USCG) COORDINATION 6.1 SECTION 9 BRIDGE PERMITS USCG’s mission under Section 9 of the Rivers and Harbors Act of 1899 and the General Bridge Act of 1946 is defined as administering and approving the location and plans of bridges and causeways, as well as imposing any necessary conditions relating to the construction, maintenance, and operation of these bridges. This regulatory authority is granted in the interest of public navigation.
USCG and FHWA have entered into a Memorandum of Agreement for the purpose of expediting and coordinating the planning, environmental review, and decision making for bridge permits. Additionally, USCG, FHWA, Federal Transit Administration, and Federal Railroad Administration have entered into a Memorandum of Understanding for the same purpose. The procedures and coordination laid out within these documents should be followed to ensure that USCG is involved throughout the project planning and environmental document preparation process.
Coordination with USCG must occur for bridge or causeway projects that are proposed in or over a listed Navigable Water. Coordination is necessary to determine if USCG has jurisdiction over the waterway in the project area and to receive input from USCG on permitting requirements for the project. Chapter 6.3 provides links to known Navigable Waters in each USACE district in Ohio. It is recommended that OES-WPU be contacted before submitting a PDR for a project that is proposed in or over a listed Navigable Water that may require USCG coordination.
If a permit is deemed necessary, a USCG Section 9 Bridge Permit application must be submitted and approved prior to the commencement of work. Projects that require a permit include any project that will construct a new bridge or causeway, or permanently modify an existing bridge or causeway’s horizontal and/or vertical clearances (i.e. increasing the width of a bridge structure associated with a lane widening project). Temporary bridges also require a USCG bridge permit prior to construction; temporary bridge projects follow the same procedures and information requirements as needed for a permanent bridge.
USCG has published a Bridge Permit Application Guide to assist applicants in the preparation of the Bridge Permit application. The guide presents the required format and
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Waterway Permits Manual information needed for the Bridge Permit application; extreme care should be taken to duplicate the USCG samples as completely and accurately as possible to ensure compliance with USCG regulations.
As part of the permitting process and decision, USCG is required by law to ensure that all environmental considerations are given careful attention. As part of these considerations, the NEPA documents (CE, EA, or EIS), 401 Water Quality Certification (WQC), and the 404 permit must be completed/authorized and submitted to USCG. In the case of Ohio River bridges, a 401 WQC must be obtained from Ohio and the adjacent state (i.e., Pennsylvania, West Virginia, or Kentucky).
It is important that coordination with USCG be initiated at an early stage of project development during the environmental review process and continued throughout project construction. Any project requiring a USCG Section 9 Bridge Permit should have the application developed in close consultation with OES-WPU. Appendix D includes a sample USCG Bridge Permit/Section 9 application. See Chapter Field Code Changed 6.3 for a list of Navigable Waterways.
6.2 PROJECTS REQUIRING A USCG CONDITIONAL APPROVAL LETTER USCG is responsible for protecting and providing safe travel for marine traffic. When ODOT repairs or rehabilitates (including changes to bridge lighting) existing bridges over Navigable Waters of the U.S. without permanent changes to the horizontal and/or vertical clearances, USCG must approve of this work prior to the work beginning. ODOT seeks this approval through early, informal coordination with USCG. This early coordination ensures that marine traffic is aware of the work and allows USCG to provide conditions Deleted: work, and to which the contractor must adhere in order to maintain the navigational integrity of the waterway. This coordination also allows USCG the opportunity to determine whether a Section 9 Bridge Permit is required.
When any work is to be done over a Navigable Water, the district should submit a PDR package to OES-WPU for review. If the work only includes the maintenance and/or rehabilitation of an existing bridge (that does not permanently affect the vertical and/or horizontal clearances of the bridge), OES-WPU will conduct coordination with USCG and will provide the district with a permit determination that includes any USCG-imposed special provisions. These special provisions are not the same as a Section 9 Bridge Permit. The USCG provisions will stipulate that coordination between ODOT and USCG resulted in a letter from USCG, with conditions, allowing the maintenance and/or rehabilitation | 102
Waterway Permits Manual work over the Navigable Waterway. If the maintenance work includes fill into surface waters, additional waterway permits will be needed.
To improve efficiency of USCG coordination, the PDR should include the following information, if available (in addition to the standard items needed for a PDR, as detailed in Chapter 3.1): Field Code Changed • Location map of the work • Plan sheets of the work (be prepared to answer questions about any plan sheets you send to USCG) • Project Description that includes: o Timing/season of the work o The nature of the work to be performed o Will all work be performed from the bridge deck? o Will there be any barges or floating plants in the water at any time? o The time/duration the barge will be in the channel o Will the bridge be able to be opened to marine traffic or remain open during the work? Or will the bridge be able to be opened on a delay of only a few hours? o Will any material (scaffolding, tarps, etc.) hang down below the current navigational clearance area? o Will any navigational lighting be impeded by the work? o Will bridge navigational lighting be maintained during the course of the work? If not, will temporary lighting with the same behavior and effect as the permanent lighting be installed?
OES-WPU will informally coordinate the above list of information with USCG. USCG will respond to OES-WPU with what it requires for the work to be approved. If USCG determines that a Section 9 Bridge Permit is needed, then OES will work with the district to initiate that process. However, for most maintenance projects, USCG will only request that, prior to the start of work, certain information be provided to its office for approval. These approvals and notifications will become part of the project plans or the special provisions for waterway permits and will ultimately be included as environmental commitments for the project.
For maintenance projects, the required information may include the final dates that the work will be completed and the final plan set. USCG will provide a point of contact to receive this information. The contact information for USCG, as well as the information
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Requested information should be submitted to the USCG contact at least four (4) weeks before the work begins, unless otherwise specified. USCG will respond to the contractor’s submittal with a letter approving the type and timing of the work and may provide additional conditions that must be adhered to in order to maintain marine safety. Although the USCG response letter is typically received prior to issuing special provisions for waterway permits, a note should be added to the plan set, indicating that the contractor must adhere to any additional conditions USCG provides in its response letter if it has not been received. For the design-build process where the contractor may have more direct contact with USCG, a copy of all correspondence with USCG and USCG’s responses and/or approval should be forwarded to OES-WPU. For more information see Appendix G Flowchart 9. Field Code Changed
6.3 NAVIGABLE WATERS OF THE UNITED STATES For the USCG permitting process, Navigable Waters is defined as the following: 33 CFR § 2.36: Navigable Waters of the U.S., Navigable Waters, and territorial waters. 1. Except as provided in paragraph (b) of this section, Navigable Waters of the U.S., Navigable Waters, and territorial waters mean, except where Congress has designated them not to be Navigable Waters of the U.S.: i. Territorial seas of the U.S.; 2. Internal waters of the U.S. that are subject to tidal influence; and 3. Internal waters of the U.S. not subject to tidal influence that: i. Are or have been used, or are or have been susceptible for use, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce, notwithstanding natural or man-made obstructions that require portage, or ii. A governmental or non-governmental body, having expertise in waterway improvement, determines to be capable of improvement at a reasonable cost (a favorable balance between cost and need) to provide, by themselves or in connection with other waters, as highways for substantial interstate or foreign commerce. | 104
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4. Navigable Waters of the U.S. and Navigable Waters, as used in sections 311 and 312 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1321 and 1322, mean: i. Navigable Waters of the United States as defined in paragraph (a) of this section and all waters within the U.S. tributary thereto; and ii. Other waters over which the Federal Government may exercise Constitutional authority
To paraphrase the definition of Navigable Waters of the U.S. under Title 33: those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody and is not extinguished by later actions or events which impede or destroy navigable capacity.
Each USACE district is required to maintain a list of Navigable Waters of the U.S. that are in their respective districts (see links below).
Navigable Waters of the U.S. in Ohio’s USACE Districts Buffalo District Navigable Waters Huntington District Navigable Waters Pittsburgh District Navigable Waters Louisville District Navigable Waters Field Code Changed
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CHAPTER 7. SURFACE WATER MITIGATION 7.1 GENERAL DISCUSSION ODOT strives to avoid, to the fullest extent practicable, any activity that adversely impacts streams or wetlands during the design, construction, or maintenance of the state transportation system. ODOT takes appropriate action throughout the PDP to avoid, minimize, and mitigate impacts as required by federal and state law. In the event that impacts to regulated surface waters are unavoidable, ODOT considers a wide variety of mitigation strategies, which include: • Use of credits from existing ODOT-pooled mitigation sites. • Use of credits from a mitigation bank approved by the Interagency Review Team (IRT). • Use of credits from an in-lieu fee (ILF) program approved by the IRT. • Evaluation of permittee-responsible mitigation opportunities.
The purchase of credits or construction of permittee-responsible mitigation must follow USACE’s watershed approach to compensatory mitigation, whereby the needs of a watershed (generally 8-digit Hydrologic Unit Code [HUC] level) are evaluated in order to identify the most ecologically appropriate and sustainable mitigation project to offset impacts authorized by waterway permits. Generally, this involves mitigating for impacts within the same watershed where impacts occur and will include an evaluation of a mitigation project’s relationship to: • Aquatic habitat diversity • Habitat connectivity • Relationship to hydrologic sources • Trends in land use • Ecological benefits • Compatibility with adjacent land use
Depending on the needs of the watershed and the impacts proposed by a project, USACE and/or Ohio EPA may accept mitigation in any of the methods (or a combination of methods) detailed above, provided a sound ecological justification can be made for the type of mitigation proposed. Mitigation projects, and any impacts associated with the construction of the mitigation, can be authorized directly within permits issued for a transportation project’s construction impacts, or can be authorized separately by a stand- alone permit (NWP 27 or other applicable permits). Compensatory mitigation may take
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Impact analysis and mitigation are integral to the project development and waterway permitting processes. Early review and analysis of project alternatives by regulatory and resource agencies, combined with effective inter-office coordination, are imperative to developing successful mitigation projects in order to deliver transportation projects on time. This is especially true when the project involves onsite restoration. It is imperative that the WPU has early involvement in the planning, decision making process, and the design of a project that has onsite restoration.
Regulatory Requirements ODOT proposes mitigation for a project based on requirements established by USACE and Ohio EPA. The Final Rule on Compensatory Mitigation for Losses of Aquatic Resources (4/10/08) (“Mitigation Rule”, Appendix I), per USACE and USEPA, provides Field Code Changed the federal standards and expectations for the establishment, operation, monitoring, and long-term management of mitigation banks, ILF programs, and permittee-responsible mitigation projects, and presents requirements for the contents of a compensatory mitigation and monitoring plan. One of the most significant aspects of the rule involves the establishment of USACE’s mitigation hierarchy, whereby use of mitigation bank credits is preferred, followed by credits from ILF programs, and finally completion of permittee-responsible mitigation. In general, the Mitigation Rule states that restoration (re-establishment) should be the first method of mitigation considered, as restoration increases the likelihood of mitigation success. Additionally, restoration often reduces impacts to potentially ecologically significant uplands when compared to establishment (creation). Finally, restoration results in increased gains in terms of aquatic resource area and functions when compared to enhancement and preservation.
The USACE has developed the Stream and Wetland Valuation Metric (SWVM) and the Hydrogeomorphic (HGM) assessment (Allegheny Plateau Region) for use in Ohio. The wetland component of the SWVM has yet to be developed. At this time the SWVM and the HGM are not being implemented on ODOT projects. For more information on the SWVM and the HGM visit the USACE-Huntington District website.
The Wetland Water Quality Standards (OAC 3745-1-50 through 3745-1-54) are Ohio EPA’s regulations that govern wetland compensatory mitigation under the CWA. Ohio’s Isolated Wetland Law (ORC 6111.02 to 6111.028) regulates compensatory mitigation for
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In addition to the aforementioned federal and state rules, the Ohio IRT has released guidelines for the establishment and operation of wetland and stream mitigation banks and ILF programs within Ohio. Although ODOT is not directly involved in mitigation banking or ILF programs, these guidelines apply to all types of stream mitigation and contain pertinent information related to mitigation project monitoring, ecological performance standards, and debit and credit ratios. Specifically, the ILF debit and credit ratios are used for existing ODOT pooled mitigation sites, mitigation banks, ILF programs, and proposed permittee-responsible mitigation projects.
Surface Water Mitigation Options for ODOT Projects Mitigation Bank Credits – mitigation banks are sites approved by the IRT to sell wetland and/or stream credits to permittees. Mitigation banks reduce the risk and uncertainty of mitigation project success and temporal loss of aquatic resource functions and values, as mitigation banks often involve extensive planning and engineering, consolidate ecologically valuable sites, must meet certain milestones before credits can be sold, include financial assurances, and are required to identify a long-term management partner to ensure project maintenance and integrity after monitoring has concluded. In-Lieu Fee Program Credits – ILF programs are a type of mitigation program approved by the IRT to sell wetland and/or stream credits to permittees. ILF programs can only be administered by a natural resource state agency or 501(c)(3) non-profit. ILF programs provide similar benefits to mitigation banks. However, unlike mitigation banks, there can be up to a three year delay between when advance credits are sold and when a mitigation project is ultimately built by the ILF sponsor. This temporal loss of functions and values results in ILF programs being second in USACE’s preferred order of mitigation. Permittee-Responsible – permittee-responsible mitigation involves compensation projects constructed, monitored, and managed by the permittee to offset impacts from a project. For ODOT, permittee-responsible mitigation can take the form of use of credits from an ODOT pooled mitigation site, a new mitigation project undertaken by ODOT, or a full-delivery mitigation project provided by a third-party.
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7.2 ODOT PROCEDURE FOR MITIGATION ODOT can approach mitigation in two different ways: use of an existing mitigation site (IRT-approved mitigation bank credits, IRT-approved ILF program credits, or previously approved ODOT pooled mitigation site credits), or development of a new mitigation site (permittee-responsible). When determining which approach is more appropriate, OES- WPU will consider the requirements of the Mitigation Rule, project constraints, cost, and ecological benefits, among other factors. Note: the USACE District Engineer retains the flexibility to determine what form of compensatory mitigation is environmentally preferable when evaluating potential mitigation options. In making this determination, the USACE District Engineer must assess the likelihood for the mitigation project’s ecological success and sustainability, the location of the mitigation site relative to the impact site, the sites’ significance within the watershed, and the costs of the compensatory mitigation project. As such, the rule does not necessarily dictate the agencies’ mitigation decision making but may determine the level of ecological justification ODOT must provide in order to support a selected mitigation plan.
Compensatory Stream and/or Wetland Mitigation Plan Development of a Permittee-Responsible Mitigation Plan ODOT follows the required contents for a mitigation plan as presented in the Mitigation Rule (33 CFR 332.4(c)(2-14). USACE requires that waterway permit applications be submitted with a proposed mitigation plan containing adequate information and detail on how the mitigation project will replace functions and values lost as a result of the transportation project. This information is included within the public notice issued by USACE and enables the public to provide meaningful feedback on the proposed mitigation. ODOT typically provides a Conceptual Mitigation Plan with the appropriate waterway permit applications for regulatory agency review. The Conceptual Mitigation Plan attempts to address all of the elements required by the Mitigation Rule (see below). Submission of a Conceptual Mitigation Plan within the permit applications allows the permit review and public notice processes to begin.
While the permit applications are being reviewed and processed by the agencies, ODOT- OES prepares a Final Mitigation Plan (containing all 12 elements from the Mitigation Rule) for agency review/approval. USACE cannot permit fill in waters of the U.S. until they have reviewed and approved a Final Mitigation Plan.
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The items required to be described and included in a Final Mitigation Plan include:
• Objectives • Maintenance Plan • Site Selection • Performance Standards • Site Protection Instrument • Monitoring Requirements • Baseline Information • Long-term Management Plan • Determination of Credits • Adaptive Management Plan • Mitigation Work Plan • Financial Assurances
Details regarding each of these required elements are provided in Appendix I. Field Code Changed
For some permittee-responsible projects, preservation of high-quality wetlands and/or streams may be done in conjunction with aquatic resource restoration, establishment, and/or enhancement activities. For projects that propose to utilize preservation of aquatic resources as a component of a project’s Mitigation Plan, additional information and documentation will be required by USACE. The Mitigation Rule (33 CFR 332.3(h)(1-2)) states that all of the following criteria must be met when preservation is being proposed: • The resources to be preserved provide important physical, chemical, or biological functions for the watershed. • The resources to be preserved provide significant contributions to the ecological sustainability of the watershed. • That preservation is determined by the USACE District Engineer to be appropriate and practicable • The resources are under threat of destruction or adverse modification • The preserved site will be permanently protected through an appropriate real estate or other legal instrument (e.g., easement, title transfer to state resource agency, or land trust).
Ohio EPA has additional requirements related to the preservation of wetlands when proposed as a component of a Mitigation Plan. OAC 3745-1-54 states that the permittee must demonstrate that the wetland to be preserved is Category 3 or the wetland to be preserved is critical in protecting a Category 3 wetland and both wetlands must be preserved long term. High quality Category 2 preservation can also be used for mitigation as long as they have potential to reestablish superior functions if preserved. Ohio EPA does not currently have similar quality requirements for stream preservation.
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Mitigation at an Existing Mitigation Bank, ILF Program, or ODOT Pooled Mitigation Site ODOT frequently proposes mitigation at an existing IRT-approved mitigation bank, IRT- approved ILF program, or a previously approved ODOT pooled mitigation site. These types of mitigation proposals do not require the level of information and documentation that is required when ODOT is pursuing the development of a permittee-responsible mitigation project. When proposing the use of an IRT-approved mitigation bank or ILF program with a service area that includes the same watershed as the proposed project impacts, a simple discussion of the mitigation bank or ILF program and how use of the mitigation bank or ILF program meets the Mitigation Rule and OAC 3745-1-54 will suffice (especially since mitigation banks and ILF programs are preferred methods of mitigation for the agencies).
If mitigation is proposed at a mitigation bank or ILF program in another watershed, as permitted by USACE and/or Ohio EPA for all jurisdictional and Category 1 wetland impacts of any size, and Category 2 wetland impacts of 0.5 acre or less, the mitigation bank or ILF program must be located within the same USACE district as where the impacts occur. Note that mitigation for Category 3 wetland impacts must occur within the project’s watershed.
ODOT will continue to evaluate the need to develop permittee-responsible mitigation projects, especially when a major new roadway project has significant mitigation demands. Typically, ODOT will construct or preserve more wetland acreage or stream footage than what is needed for the project at hand and propose the remaining credits as pooled-for-use on future ODOT projects. The agencies will either create a service area for the extra credits or approve future use of pooled credits on a case-by-case basis. These permittee-responsible mitigation projects have proved valuable for smaller projects requiring mitigation where mitigation banks are not present in the watershed or impacts are too minor to justify development of a new mitigation project. However, use of ODOT pooled mitigation credits often requires more justification to the agencies, as permittee- responsible mitigation is ranked lowest in the mitigation hierarchy presented in the Mitigation Rule. See Appendix I for a variety of examples of mitigation justification using Field Code Changed banks or ODOT pooled sites.
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OES-WPU’s general procedure for securing required mitigation for surface water impacts is detailed below: 1. Mitigation needs shall be determined early in the process. The project ESR identifies the potential project impacts and can provide a starting point for understanding what and where mitigation could occur. 2. In the permit determination mitigation information is provided by OES based off the PDR submittal. A permit strategy meeting may be required for complex projects and is always required for projects requiring an individual permit. 3. During the permit strategy meeting OES-WPU works with the district, consultants, and designers as needed to determine the preferred plan of action for mitigation. 4. To determine the optimal mitigation strategy, OES will conduct an analyses of potential mitigation opportunities within the project area (or near the project area) and within the 8 Digit Hydrological Unit Code (HUC) watershed where the impacts are anticipated to occur (See Appendix I for 8-digit HUC Watershed Map of Ohio). Field Code Changed ODOT’s Mitigation Inventory Website is consulted for existing ODOT pooled mitigation projects with credits available, along with previously purchased mitigation bank or ILF credits. If no mitigation credits are available, the mitigation effort may require purchase of credits at a mitigation bank or ILF program, or a partnership between ODOT and various organizations or individuals (such as a watershed group, conservation group, a local park district, ODNR, a private landowner, or a third-party contractor) to secure appropriate mitigation. 5. OES-WPU will select a mitigation strategy which could include one or more of the following: a. Mitigation bank credits, b. ILF program credits, c. ODOT pooled credits, or d. A new ODOT permittee-responsible site.
Mitigation Bank Credits, ILF Program Credits, and ODOT Pooled Credits For projects where ODOT can utilize existing mitigation credits at a mitigation bank, ILF program, or pooled site, this approach may be preferred by ODOT in order to minimize additional costs, especially as ODOT has often already invested significant time and money in purchasing credits at a bank, ILF program, or developing a pooled mitigation site.
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One or more of the items below may be required when securing mitigation bank credits, ILF program credits, or ODOT pooled mitigation site credits: • Mitigation justification • Proof of purchase/reservation of credit (bank/ILF) • Signed purchase agreement (bank/ILF) • Updated balance sheet (ODOT pooled mitigation site)
When mitigation bank credits, ILF program credits, or ODOT pooled mitigation site credits are not available, or practicable, or when ODOT has identified an ecologically valuable mitigation project that meets the requirements of the Mitigation Rule while resulting in reduced costs, ODOT will pursue permittee-responsible mitigation.
New ODOT Permittee-Responsible Mitigation Site Permittee-responsible mitigation projects are accompanied by a certain level of inherent risk and uncertainty, as their ultimate success may be influenced by the dynamic character of natural aquatic systems (i.e. droughts, floods, pests or other events that cannot be reasonably anticipated or prevented by a permittee). ODOT-OES can internally undertake these mitigation projects as needed, but such projects call for greater planning efforts associated with design, monitoring, maintenance, and agency coordination, which can result in increased, and often unanticipated, costs for ODOT. To reduce these risks, staff involvement, and costs, ODOT can also employ full-delivery permittee-responsible mitigation projects undertaken by a third-party contractor. Full-delivery contracts allow ODOT to control costs while shifting the responsibility of nearly all aspects of a permittee- responsible mitigation project to the third-party contractor, including: site identification; resource assessment and documentation; report writing; site procurement; monitoring; adaptive management; and long-term protection. This type of permittee-responsible mitigation has been very successful in the past and may be employed by ODOT to fulfill a project’s mitigation needs on a case-by-case basis.
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OES-WPU’s general procedure for securing permittee-responsible mitigation is detailed below: 1. Develop a Conceptual Mitigation Plan. Include a justification of the type and location of mitigation, per the Mitigation Rule (Appendix I). If the preferred Field Code Changed option(s) in the Mitigation Rule is/are not proposed, provide an explanation as to why ODOT is not proposing the preferred option(s). The explanation can include items such as: absence of banks within the watershed; absence of advance or released credits from an ILF program; on-site mitigation is not feasible or practicable; and use of existing, agency-approved mitigation sites where ODOT has already invested efforts and money and provided documentation of ecological success. During the development of a particular permittee-responsible mitigation plan, OES-WPU may invite the resource agencies to potential mitigation areas to partner with them on establishing the validity of the site and obtaining agency feedback and insight. 2. ODOT will submit approved Conceptual Mitigation Plan with waterway permit application to the resource agencies for review. 3. During agency permit application review/processing, develop a Final Mitigation Plan that meets the requirements of the Mitigation Rule and Mitigation Guidelines Checklist for Ohio. 4. ODOT will submit Final Mitigation Plan for regulatory agency review/approval prior to finalization of waterway permit approvals. 5. Additional items included in a Final Mitigation Plan may include: a. Developing construction plans. b. Develop long-term site protection instruments. c. Procuring credits at mitigation bank, if applicable. d. Provide funds to partnering organization for mitigation project(s), if applicable. e. Construct and monitor mitigation implementation, if applicable. f. Post-construction monitoring, per the waterway permits conditions, if applicable. 6. Provide perpetual or long-term protection instruments to regulatory agencies as appropriate.
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7.3 MITIGATION PLAN JUSTIFICATION The following steps outline how to provide justification for a Mitigation Plan based on ODOT’s order of preference: • Explain why on-site mitigation is not feasible. • Check if any ODOT pooled mitigation sites are in the same 8-digit HUC watershed as the impacted resource. • If no ODOT pooled mitigation is available, look for IRT-approved mitigation banks with a service area and appropriate resource type in the 8-digit HUC watershed where the impacts are proposed (see the Regulatory In-Lieu Fee and Bank Field Code Changed Information Tracking System (RIBITS) maintained by USACE for more information). • If there are no ODOT mitigation sites in the same watershed, or there are no mitigation banks in the same watershed with the appropriate credits available (including quantity, resource type(s), and quality), then check for credit availability from ILF programs. • If no ODOT mitigation sites, mitigation banks, or ILF programs have credits available in the watershed where the project is located, the search is repeated in the same order for adjacent 8-digit HUC watersheds and/or for mitigation sites, mitigation banks or ILF programs approved by both agencies as a service area. • Mitigating within an adjacent watershed requires justification to, and approval by, the permitting agencies. When developing justification, compare the quality of the impacted resources to the quality of resources at the mitigation site (ODOT pooled mitigation site, mitigation bank, or ILF program project site). • Discuss the mitigation ratio and the functions and values of the site at the impacted location and at the mitigation site (bank). Consider a reduced mitigation ratio if permanent impacts will not result in a total loss of an aquatic resource (i.e. bioengineering), or if the mitigation site meets OAC 3745-1-54(F)(7) for upland buffers. Also, consider an increased mitigation ratio if credits are proposed at an adjacent watershed. • After the mitigation plan is determined, reference the USACE 2008 mitigation rule and identify how the proposed plan meets the rule. If applicable, also reference Ohio EPA’s Water Quality Standards (OAC 3745-1-50 through 3745-1-54) and/or Ohio EPA’s Isolated Wetland Law (ORC 6111.02 to 6111.028). • If ODOT identifies an outstanding permittee-responsible mitigation project or decides to pursue a permittee-responsible mitigation project due to the cost of other available mitigation options (as cost is a component of the USACE District
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Engineer’s review in determining if mitigation is environmentally preferable), then a narrative providing ecological justification for ODOT’s pursuit of a new permittee-responsible mitigation project must be developed. OES should be consulted for additional information.
OES strives to develop more standardized procedures for the identification and acquisition of stream and wetland mitigation. However, due to the unique nature of individual projects, development of project-specific, permittee-responsible mitigation will continue to be evaluated on a case-by-case basis. OES works in cooperation with ODOT DOs, the ODOT-CO Office of Real Estate, the ODOT-CO Office of CADD and Mapping Services, and project consultants to develop mitigation solutions. Final ODOT approval of project mitigation is a function of ODOT Central Office. OES is responsible for the evaluation and approval of all valid mitigation opportunities that adequately compensate for wetland and stream impacts. Any questions on mitigation should be addressed to OES. A conceptual mitigation plan should not be developed unless a permit strategy meeting has been held with OES-WPU.
In rare instances, ODOT projects will require right-of-way takes from existing conservation easements or environmental covenants that were recorded to provide long- term protection for previously constructed ODOT permittee-responsible mitigation projects. Acquisition of right-of-way from such easements is a real estate process that is separate from NEPA and may require the identification of replacement mitigation. The project design team should be aware that acquisition from such easements can be time consuming and will require early coordination with the affected entity. Additionally, the project team should be alert to potential future transportation needs when establishing new conservation easements on permittee-responsible mitigation projects completed by or for ODOT.
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