[Comment: For dates of non-regulatory government publications,
publications of recognized organizations and associations, federal rules and
federal statutory provisions referenced in this rule, see rule
3745-32-01 of the Administrative
Code.]
(A) The filing of an
application for a federal permit or license for which a 401 certification is
required does not constitute an application for a 401 certification with the
state of Ohio.
(1) The director may waive the
application requirement if, in the judgment of the director, the activity for
which a federal permit or license is sought will not result in a discharge to
the waters of the state.
(2) If the
federal permit sought is a nationwide permit, a regional permit, or a letter of
permission issued by the corps and Ohio EPA has issued a certification for the
federal permit, no further
401 certification
application is
required to be submitted to Ohio EPA
under this chapter
necessary provided
that the project meets all of the terms and conditions for coverage under the
certification or the director has authorized the project to proceed under the
terms of the general certification based on a case specific determination of
the environmental impacts of the project.
(B) Application requirements.
(1) Any person requesting authorization for
an activity that
requires
necessitates a 401 certification shall comply
with the application procedures set forth in this rule. The director
shall prescribe
prescribes the form and
required content of the application for a 401
certification. Additional information shall be submitted in accordance with the
antidegradation requirements in rules
3745-1-05 and
3745-1-54 of the Administrative
Code. The director may request additional information if, in the judgment of
the director, additional information is necessary to determine whether the
applicant meets the approval criteria in paragraph (C) of this rule.
(2) Any application for a 401 certification
subject to the provisions of this rule shall be submitted on forms provided by
the director and completed in accordance with the corresponding application
instructions. The application shall be submitted no later than forty-five days
after the publication of the corps 404 public notice, if applicable, and
shall include the following:
(a) Current and unexpired correspondence from
the corps documenting the jurisdictional status of the waters located within
the project area.
(b) For each
wetland within a project boundary, a wetland characterization analysis
consistent with "Ohio Rapid Assessment Method for Wetlands." The Ohio rapid
assessment method protocol is available on the Ohio EPA website at
http://www.epa.ohio.gov/dsw/401/ecology.aspxhttps://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/wetland-ecology.
The Ohio rapid assessment method
shall
include
includes complete and accurate
forms, including the background information, scoring boundary worksheet,
narrative rating, quantitative rating, and wetland categorization worksheets
completed and submitted in accordance with the procedures outlined in the Ohio
rapid assessment method manual.
(c)
If the project involves a stream for which a specific aquatic life use
designation found in Chapter 3745-1 of the Administrative Code has not been
made, data sufficient to determine the existing aquatic life use.
(d) A specific and detailed mitigation plan
prepared in accordance with the requirements in 33 C.F.R. Part
332 and
rule
rules
3745-1-54
and 3745-32-04 of the Administrative
Code including the location and proposed real estate instrument or other
available mechanism for protecting the property long term.
(e) A minimum of four high resolution color
photographs taken while facing each of the four cardinal directions of each
wetland proposed for impact. A minimum of three high resolution color
photographs taken while facing upstream of the proposed impact area, downstream
of the proposed impact area, and one close up which clearly depicts the
substrate composition and size for each stream proposed for impact. A minimum
of three high resolution color photographs for all other waters of the state
proposed for impact. Photographs must accurately depict the quality of the
water of the state and may not include a majority of dying or dead vegetation
and excessive cover due to seasonal conditions that vegetation and substrates
cannot be observed, such as leaf litter, snow, or ice. Photographs deemed to be
insufficient of representing the water of the state will
be required
need to be retaken once seasonal conditions are
appropriate. Photographs shall be clearly labeled with the name, direction, and
date.
(f) Adequate documentation
confirming that the applicant has requested comments from the Ohio department
of natural resources and the United States fish and wildlife service regarding
threatened and endangered species, including the presence or absence of
critical habitat.
(g) Descriptions,
schematics, and appropriate economic information concerning the applicant's
alternatives analysis prepared in accordance with 40 C.F.R. Part
230 and
required by rules
3745-1-05 and
3745-1-54 of the Administrative
Code.
(h) The applicant's
investigation report of the waters of the United States in support of a federal
license or permit application concerning the project.
(i) In the case of jurisdictional waters, a
copy of the corps public notice regarding the application for a permit under
section 404 of the act for the proposed project or other notification from the
corps that the project will be authorized under a general permit or letter of
permission if applicable.
(3) Applicable fees. A person that applies
for a 401 certification under Chapter 6111. of the Revised Code and this
chapter shall pay fees in accordance with section
3745.114 of the Revised
Code.
(4) Applicants regulated
under division 1501:13 of the Administrative Code may elect to utilize
alternate, consolidated application procedures as approved by the director, the
director of Ohio department of natural resources, and the corps.
(C) Application processing
.
(1) Not later than
fifteen business days after the receipt of an application for an individual 401
certification, the director shall notify the applicant whether the application
is complete.
(a) If the application is not
complete, the director shall include in the notice an itemized list of the
information or materials that are necessary to complete the application. No
further processing of the application shall take place until the itemized list
of information or materials requested by the director is received and
determined to be complete.
(b) If
the applicant fails to provide the information
described in paragraph (B) of this rule within
sixty
ninety
days after the director's receipt of the application
and a corps public notice regarding the application for a
404 permit has not been published for the project, the director may
return
deny
the
incomplete application
and take no further action on the
application.
(c) If the application is not
complete, and a corps public notice regarding the application for a 404 permit
has been published, all the items required by paragraph (B) of this rule must
be received within one hundred eighty days of the corps public notice
date.
(2) If the director fails to notify the
applicant within fifteen business days regarding the completeness of the
application, the application is considered complete.
(3) As it
is used in this rule, "complete application" means an application in
which all of the items required by paragraph (B) of this rule have been
provided and the items are complete. A complete application does not equate to
an approvable project.
(D) Criteria for decision by the director.
(1) The director
shall
may not issue a
401 certification unless the director determines that the applicant has
demonstrated that the discharge
of dredged or fill
material to waters of the state or the creation of any obstruction or
alteration in waters of the state, will not do any of the following:
(a) Violate the antidegradation requirements
in rules
3745-1-05 and
3745-1-54 of the Administrative
Code.
(b) Prevent or interfere with
the attainment or maintenance of applicable water quality standards in Chapter
3745-1 of the Administrative Code.
(c) Result in a violation of any applicable
provision of the act.
(2) Except as provided in paragraph (D)(3) of
this rule, the director
shall
may not issue a 401 certification for any harbor or
navigation maintenance activities proposing to deposit dredged material in any
part of lake Erie that is within the territorial boundaries of this state or in
the direct tributaries of lake Erie within this state unless the director has
determined the following:
(a) The dredged
material will not result in a modeled increase in "bioaccumulation" of a
"bioaccumulative chemical of concern" as those terms are defined in rule
3745-1-02 of the Administrative
Code. Dredged material found to be unsuitable for the deposit of dredged
material pursuant to this paragraph shall be placed in a confined disposal
facility or an upland location determined to be protective of public health and
the environment.
(b) The placement
of the dredged material will not violate any international treaties or
interstate compacts regarding any bioaccumulative chemical of concern as
defined under those treaties or compacts.
(3) The preclusions set forth in paragraph
(D)(2) of this rule
shall
do not apply to placing the material into a
confined disposal facility that is located in lake Erie or the direct
tributaries or the discharge of de minimus dredged material associated with
dewatering operations necessary to facilitate placement of the dredged material
in a confined disposal facility or upland location.
(4) Notwithstanding an applicant's
demonstration of the criteria in paragraphs (D)(1) and (D)(2) of this rule, the
director may deny an application for a 401 certification if the director
concludes that the discharge of dredged or fill material to waters of the state
or the creation of any obstruction or alteration in waters of the state will
result in adverse long term or short term impacts on water quality.
(E) Time frames for taking an
action on a 401 certification.
(1) The
director shall take an action on a 401 certification for an activity in waters
of the state within one hundred eighty days of receipt of a complete
application pursuant to paragraph (A) of this rule.
(2) An action on a 401 certification shall be
taken and may be challenged in accordance with Chapters 3745-47 and 3745-49 of
the Administrative Code.
(F) Modification.
(1) An applicant seeking to modify a 401
water quality certification shall notify
Ohio EPA in writing, setting forth a description of the proposed modifications
and the reasons therefore. The director may approve, approve with conditions,
or deny any request for modification, or require the applicant to apply for and
obtain a new 401 certification if the scope or purpose of the project is
changed beyond that authorized in the original certification.
(a) Approvals or approvals with conditions,
of the modification,
shall
will be issued as final actions and subject to the
public notice requirements of Chapter 3745-49 of the Administrative
Code.
(b) Applications for
modification of previously issued 401 certifications will be subject to all the
requirements of rules
3745-1-05 and
3745-1-54 of the Administrative
Code if applicable.
(2)
A 401 certification shall be modified and may be challenged in accordance with
Chapters 3745-47 and 3745-49 of the Administrative Code.
(G) Transfer.
(1) A 401 certification may be
transfered
transferred to a third party provided that the
original certification holder submits to the director all of the following:
(a) Advance written notice of the proposed
transfer.
(b) A signed and
notarized statement by the transferee assuming the obligations of the 401
certification.
(c) A signed and
notarized statement by the original certification holder regarding project
status and compliance with the terms of the 401 certification.
(2) The person to whom the 401
certification was originally issued shall continue to be responsible for
ensuring that the conditions of the 401 certification are fulfilled, and shall
be liable for any violations thereof, until such time as Ohio EPA receives
documentation required by paragraph (G)(1) of this rule and an official
notification of transfer is issued identifying the new holder of the
certification.
(H)
Revocation.
(1) The director may revoke a 401
certification if the director concludes at any time that any applicable laws or
rules have been violated, or when the director determines that the 401
certification approval was based on false or misleading information at the time
that the application was originally submitted to Ohio EPA.
(2) A 401 certification shall be revoked and
may be challenged in accordance with Chapters 3745-47 and 3745-49 of the
Administrative Code.
(I)
Expiration and extension.
(1) A 401
certification
shall expire
expires upon the expiration of the applicable federal
license or permit
unless specified in the 401
certification.
(2) A 401
certification
shall remain
remains valid if the applicable federal license or
permit is extended so long as no additional water quality impacts beyond those
authorized in the original or modified 401 certification will result from the
renewal of that certification. If additional water quality impacts beyond those
authorized in the original or modified 401 certification are proposed, the
applicant
must
shall apply for a new 401 certification in accordance
with the criteria established in paragraph (B) of this rule or a 401
modification in accordance with the criteria established in paragraph (F) of
this rule.
(J) Denial.
(1) Any application that fails to achieve the
criteria established in paragraph (B) or (C) of this rule may be
denied.
(2) The director shall
provide a written explanation to an applicant for a 401 certification of the
basis for the proposed denial of the application, if applicable.
(3) A 401 certification shall be denied and
may be challenged in accordance with Chapters 3745-47 and 3745-49 of the
Administrative Code.
(K)
Conditions of certification.
(1) The director
may impose such terms and conditions as part of a 401 certification as are
appropriate or necessary to ensure compliance with applicable laws and to
ensure adequate protection of water quality and human health.
(2) Prior to the issuance of a 401
certification or as a condition of any 401 certification, the director may
require that the applicant perform various environmental quality tests to
ensure adequate protection of water quality and human health, including, but
not limited to, chemical analyses of water, sediment or fill material, and
bioassays and biological monitoring.
(L) Emergency certification.
(1) If the corps determines an emergency
exists as defined under in 33 C.F.R.
325.2(e)(4) and seeks to
process a 404 application in accordance with procedures under that rule, the
director may issue an emergency certification authorizing the placement of fill
or dredged material into waters of the state if the director concurs with the
existence of an emergency. To the extent that the time frames for certification
do not allow the application to be processed in accordance with normal
procedures, the director shall issue the certification as a final action and
then require and process a complete application in accordance with paragraph
(L)(2) of this rule.
(2) Upon the
expiration of the emergency, the director shall require the applicant to submit
a complete application for a 401 certification that addresses the emergency
fill and any additional placement of fill or dredged material into waters of
the state, beyond that authorized by the emergency certification.
(M) Corps general permits and
letters of permission.
(1) The director may
issue, deny or waive action on any 401 certification for general permits and
letters of permission issued by the corps under section 404 of the
act.
(2) The director may impose
such terms and conditions as part of a general 401 certification as are
appropriate or necessary to ensure compliance with applicable laws and to
ensure adequate protection of water quality and human health.
(N) General certifications. The
director may issue general certifications and include such terms and conditions
as are appropriate or necessary to ensure compliance with applicable laws and
to ensure adequate protection of water quality and human health.