Ohio Admin. Code 3745-1-50 - Wetland definitions and availability of documents

[Comment: For dates of non-regulatory government publications, publications of recognized organizations, federal rules and federal statutory provisions referenced in this rule, see paragraph (AA) of this rule and rule 3745-1-03 of the Administrative Code.]

In addition to the definitions in rules 3745-1-02 and 3745-32-01 of the Administrative Code technical words used in rules 3745-1-50 to 3745-1-54 of the Administrative Code shall be are defined as follows:

(A) "33 C.F.R." means Title 33 of the Code of Federal Regulations effective July 1, 2017.

(B) "40 C.F.R." means Title 40 of the Code of Federal Regulations effective July 1, 2017.

(A)

(C)(1) "Alternatives analysis" means a systematic review and evaluation of practicable alternatives including avoidance, minimization and compensatory mitigation for impacts to a wetland.

(D)(2) "Applicant" means any person required to submit who submits an application to obtain a section 401 water quality certification or isolated wetland permit from the Ohio environmental protection agency (Ohio EPA).

(E)(3) "Areal cover" means the per cent of vegetation covering any area of wetland. Areal measurements are those made as if the wetland were being viewed from above.

(F)(4) "Avoidance" is the first step in the alternatives analysis and means that the applicant must demonstrate demonstrates that alternatives that fulfill the basic project purpose and have less or no impacts to the wetland are not practicable, so long as the alternative does not have other significant adverse environmental consequences.

(B)

(G)(1) "Biodiversity" means the number of community types, different species, and genetic variants of species found in a given area.

(H)(2) "Bog" means a peat-accumulating wetland that has no significant inflows or outflows and supports acidophilic mosses. Characteristic indicator species may include, but are not limited to Calla palustris, Carex atlanticavar. capillacea, Carex echinata, Carex oligosperma, Carex trisperma, Chamaedaphne calyculata, Decodon verticillatus, Eriphorum virginicum, Ilex mucronata, Larix laricina, Scheuchzeria palustris, Sphagnum spp., Vaccinium macrocarpon, Vaccinium corymbosum, Vaccinium oxycoccos, Woodwardia virginica, and Xyris difformis.

(C)

(I)(1) "Compensatory mitigation" refers to the final step in the alternatives analysis and means reestablishment (restoration), establishment (creation), rehabilitation (enhancement) or, in certain circumstances preservation of wetlands for the purpose of compensating for unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization have been achieved.

(J)(2) "Critical habitat" means the following:

(1)(a) The specific areas within the geographical area currently occupied by a species, at the time it is listed in accordance with the Endangered Species Act on which are found those physical or biological features essential to the conservation of the species, and that may require need special management considerations or protection.

(2)(b) Specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the Endangered Species Act, upon a determination by the secretary of the department of the interior, that such areas are essential for the conservation of the species.

(K)(3) "Cumulative impacts" mean means the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonable foreseeable future actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Cumulative impacts shall be are considered on a watershed basis.

(D)

(L)(1) "Direct impacts" mean means effects which are caused by the action and occur at the same time and place.

(M)(2) "Dispersal corridor" means an area that is used by organisms to move from one place of suitable habitat to another.

(E)

(N)(1) "Endangered species" means a native Ohio plant species listed or designated by the Ohio department of natural resources as endangered or extirpated pursuant to section 1518.01 of the Revised Code, and animal species listed or designated as endangered or extirpated by the Ohio department of natural resources pursuant to section 1531.25 of the Revised Code; or any plant or animal species that is native to Ohio or that migrates or is otherwise reasonably likely to occur within the state which has been listed as endangered pursuant to section 4 of the Endangered Species Act.

(O)(2) "Establishment (creation)" means the manipulation of the physical, chemical, or biological characteristics present to establish a wetland where one did not formerly exist at an upland site.

(F)

(P)(1) "Fen" means a carbon accumulating (peat, muck) wetland that is saturated, primarily by a discharge of free flowing ground water during most of the year. Fens are rarely inundated. Fens often have a sloped surface which prevents the accumulation of stagnant or ponded water. The water of fens is usually mineral rich and has a circumneutral pH (5.5-9.0). In calcareous fens, soil may be dominated by deposits of calcium carbonate rich sediments (marl). Characteristic indicator species may include, but are not limited to Cacalia plantaginea, Carex flava, Carex sterilis, Carex stricta, Dasiphora fruticosa, Deschampsia caespitosa, Eleocharis rostellata, Eriophorum viridicarinatum, Gentianopsis spp., Lobelia kalmii, Oligoneuron ohioense, Parnassia glauca, Rhamnus alnifolia, Rhynchospora capillacea, Salix candida, Salix myricoides, Salix serissima, Tofieldia glutinosa, Triglochin maritimum, Triglochin palustre, and Zygadenus elegansvar. glaucus.

(Q) "Field Manual for the Amphibian Index of Biotic Integrity for Wetlands" (Ohio EPA, 2011) is available on Ohio EPA's website at: http://epa.ohio.gov/dsw/401/ecology.aspx#149364495-reports. This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(R)(2) "Forested wetland" means a wetland class characterized by woody vegetation that is twenty feet tall or taller.

(S)(3) "Floodplain" means the relatively level land next to a stream or river channel that is periodically submerged by flood waters. It is composed of alluvium deposited by the present stream or river when it floods.

(T)(4) "Function" means the physical, chemical, and biological processes occurring ina in a wetland that contribute to a larger ecological condition such as water quality improvement, flood control or biodiversity maintenance.

(G)

(U)(1) "Ground water discharge" means water flowing out of a ground water zone. In regards regard to wetlands, ground water discharge occurs when water flows from a ground water zone to a wetland.

(V)(2) "Ground water recharge" means water flow into a ground water zone. In regards to wetlands, ground water recharge occurs when water flows from a wetland to a ground water zone.

(W)(H) "Hydrologically isolated wetlands" means 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 one hundred-year "floodplain" as that term is defined in this rule.

(3) Have no contiguous hydric soil between the wetland and any surface water of the state.

(I)

(X)(1) "Indirect impacts" means effects which are caused by the project and that occur farther removed in distance from the project, but are still reasonably foreseeable. Indirect impacts may include related effects on air and water and other natural systems, including ecosystems, and other adverse environmental impacts that may be a consequence of the project.

(Y)(2) "In-kind" means a wetland of a similar structural and functional type to the impacted wetland.

(Z)(3) "In-lieu fee program" means a program that has been approved in accordance with 33 C.F.R. Part 332.8, involving the reestablishment (restoration), establishment (creation), rehabilitation (enhancement), or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements.

(J) [Reserved.]

(K) [Reserved.]

(AA)(L) "Long term protection" means compensatory mitigation that is protected with a legal instrument such as an environmental covenant, conservation easement, or deed restriction. In the event a legal instrument is not a viable option based on land ownership or lease agreements where compensatory mitigation has occurred, the applicant must should clearly demonstrate operational control to sustain and preserve the compensatory mitigation project after performance standards are met and monitoring requirements have been fulfilled.

(M)

(BB)(1) "Minimization" refers to a step in the alternatives analysis and means that unavoidable impacts are reduced to the maximum extent practicable.

(CC)(2) "Mitigation bank" means a site that has been approved in accordance with 33 C.F.R. Part 332.8, where aquatic resources have been reestablished (restored), established (created), rehabilitated (enhanced) or preserved expressly for the purpose of providing compensatory mitigation for authorized impacts.

(DD)(3) "Mitigation ratio" means the rate at which wetland units (e.g., acres) will be reestablished (restored), established (created), rehabilitated (enhanced) or preserved to provide for compensation of unavoidable wetland losses.

(N)

(EE)(1) "Native species" means a species which, by scientific evidence, was present in Ohio just prior to European exploration and settlement.

(FF)(2) "Non-native species" means a species which, by scientific evidence, was not present in Ohio just prior to European exploration and settlement.

(GG)(3) "Nuisance organisms" means primarily vegetative organisms, that generally are non-native and have opportunistic growth patterns that displace more diverse assemblages.

(HH) "Ohio Rapid Assessment Method" (ORAM) version 5.0 (Ohio EPA, February 1, 2001) is available on Ohio EPA's website at: http://epa.ohio.gov/dsw/401/ecology.aspx#149364493-ohio-rapid-assessment-method-oram. This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(II)(O) "Old-growth forests" means forests characterized by, but not limited to, the following characteristics: overstory canopy trees of great age (exceeding at least fifty per cent of a projected maximum attainable age for a species); little or no evidence of human-caused understory disturbance during the past eighty to one hundred years; an all-aged structure and multilayered canopies; aggregations of canopy trees interspersed with canopy gaps; and significant numbers of standing dead snags and downed logs.

(P)

(JJ)(1) "Permittee" means any person who has been issued a section 401 water quality certification or isolated wetland permit by the Ohio EPA.

(KK)(2) "Practicable" means available and capable of being done after taking into consideration cost, existing technology and logistics in light of overall and basic project purposes. For the purposes of this definition:

(1)(a) "Available" means an alternative which is obtainable for the purpose of the project.

(2)(b) "Basic project purpose" means the generic function of the project.

(3)(c) "Overall project purpose" means the basic project purpose plus consideration of costs and technical and logistical feasibility.

(LL)(3) "Preservation" means the removal of a threat to, or preventing the decline of ecologically important aquatic resources through the implementation of appropriate legal mechanisms to prevent harm to the wetland. Preservation may include protection of adjacent upland areas as necessary to ensure protection of the wetland.

(MM)(4) "Public need" means an activity or project that provides important tangible and intangible gains to society, that satisfies the expressed or observed needs of the public where accrued benefits significantly outweigh reasonably foreseeable detriments.

(Q) [Reserved.]

(R)

(NN)(1) "Reestablishment" (restoration) means the manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural or historic functions to a former or degraded aquatic resource.

(OO)(2) "Rehabilitation (enhancement)" means the manipulation of the physical, chemical, or biological characteristics of existing wetlands to heighten, intensify, or improve existing or historic natural functions of a wetland.

(S)

(PP)(1) "Service area" means the geographic area within which impacts can be mitigated at a specific mitigation bank or an in-lieu fee program, as designated in its instrument.

(QQ)(2) "Services" means the benefits that human populations receive from functions that occur in wetlands.

(RR)(3) "Substrate" means solid material, such as soil, on or within which organisms can live.

(SS)(T) "Threatened species" means: a native Ohio plant species listed or designated by the Ohio department of natural resources as threatened with extirpation pursuant to section 1518.01 of the Revised Code; or an animal species listed or designated as threatened with statewide extinction by the Ohio department of natural resources pursuant to section 1531.25 of the Revised Code; or a species that appears on the threatened species registry, as defined in rule 3745-1-05 of the Administrative Code; or any plant or animal species that is native to Ohio or that migrates or is otherwise reasonably likely to occur within the state and which has been listed as threatened pursuant to section 4 of the Endangered Species Act.

(TT)(U) "Upland buffer" means land surrounding the jurisdictional edge of a wetland that consists of upland prairie, old field, shrub, or forest vegetation that is maintained in a natural state through passive or active management. This does not include lawns, mowed roadsides, fields where crops are grown or animals pastured, and other similar land uses.

(UU) "Vegetation Index of Biotic Integrity for Wetlands," version 1.5 (Ohio EPA, 2015) is available on Ohio EPA's website at: http://epa.ohio.gov/dsw/401/ecology.aspx#149364495-reports. This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(VV)(V) "Vernal pools" means shallow, temporarily flooded, depressional forested or forest edge wetlands, that are typically dry for most of the summer and fall. These wetlands are generally inundated in the late winter and spring when they are subject to a burst of biological activity, including amphibian breeding. When flooded, vernal pools are often comprised of areas of open water that are not densely vegetated. They also tend to accumulate organic (woody) debris.

(WW)(W) "Watershed" means a common surface drainage area corresponding to one from the list of thirty-seven adapted from the forty-four cataloging units as depicted on the hydrologic unit map of Ohio, U.S. geological survey, 1988, and as described in paragraph (G) of rule 3745-1-54 of the Administrative Code or as otherwise shown on appendix 1 to rule 3745-1-54 of the Administrative Code. Watersheds are limited to those parts of the cataloging units that geographically lie within the borders of the state of Ohio.

(X) [Reserved.]

(Y) [Reserved.]

(Z) [Reserved.]

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

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

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

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

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

(2) Incorporated materials.

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

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

(c) Endangered Species Act; contained in 16 U.S.C. 1531-1544; "Endangered Species"; as published in the 2018 edition of the United States Code.

(d) "Field Manual for the Amphibian Index of Biotic Integrity for Wetlands" (Ohio EPA, 2011) is available on Ohio EPA's website at: https://epa.ohio.gov/static/Portals/35/wetlands/AmphIBI_Field_Manual.pdf . This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(e) "Guidelines for Wetland Mitigation Banking and In-lieu Fee Programs in Ohio," version 2.0 (September 2020) can be found at https://usace.contentdm.oclc.org/utils/getfile/collection/p16021col111/id/6537 . This document may also be obtained by writing to: "Huntington District, U.S. Army Corps of Engineer, 502 Eighth Street Huntington, West Virginia 25701-2070."

(f) "Ohio Rapid Assessment Method" (ORAM) version 5.0 (Ohio EPA, February 1, 2001) is available on Ohio EPA's website at: https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/wetland-ecology . This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

(g) "Vegetation Index of Biotic Integrity for Wetlands," version 1.5 (Ohio EPA, 2015) is available on Ohio EPA's website at: https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/wetland-ecology . This document may also be obtained by writing to: "Ohio EPA, Division of Surface Water, PO Box 1049, Columbus, Ohio 43216-1049."

Notes

Ohio Admin. Code 3745-1-50

Effective: 10/10/2024
Five Year Review (FYR) Dates: 4/1/2024 and 10/10/2029
Promulgated Under: 119.03
Statutory Authority: 6111.041, 6111.12
Rule Amplifies: 6111.041, 6111.12
Prior Effective Dates: 05/01/1998, 07/30/2018