Water Quality Certification and Isolated Wetland Permits

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

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

• Pre-Application Request Form  
• Instructions for Pre-Application Form
• Pre-Application Request Form Electronic Submittal
• Pre-Application Request Form Electronic Submittal User’s Guide

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

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

   • Application Form
   • Instructions
   • Proposed lakes impact table
   • Proposed stream impacts and mitigation table
   • Proposed wetland impacts and mitigation table
   • 401 Application Form Electronic Submittal
   • 401 Application Form Electronic Submittal User’s Guide

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

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

4. If the project involves a stream for which a specific aquatic life use designation found in Chapter 3745-1 of the Administrative Code has not been made, data sufficient to determine the existing aquatic life use;

5. A specific and detailed mitigation plan prepared in accordance with 33 C.F.R. Part 332 and rule 3745-1-54, including the location and proposed real estate instrument or other mechanism for protecting the property long term;

6. Applicable fees;

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

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

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

   Alternatives Analysis Guidance

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

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

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

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

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

• Applicant Public Notice Instruction Sheet - updated 2/17/17
• Public Notice Flow Chart
• List of General Circulation Newspapers

1. A formal mid-project review meeting procedure has been established to ensure that all applicants are offered the opportunity to meet with the application reviewer after the close of the public comment period if they so desire.

2. A formal dispute resolution procedure has been established to ensure the timely resolution of disagreements that arise during the technical review process.

Key provisions of the 401 Water Quality Certification fees are:

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

• For 401 Water Quality Certification applications, one-half of the applicable review fee is due at the time of application. The remainder of the fee shall be paid at the time the Director takes an action on the application.
• The total fee paid shall not exceed $25,000 per application. If the applicant is a county, township, or municipal corporation in the state, the total fee paid shall not exceed $5,000 per application.
• Fees do not apply if the applicant is a state agency or the U.S. Army Corps of Engineers.

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

When submitting an application, please provide a check, payable to the Treasurer of the State of Ohio for the application fee and one half of the review fee. The balance of the review fee will be due once the Agency has taken a final action on an application. You will receive an invoice from Ohio EPA for the remaining fees that are due.

Isolated wetlands are not connected to other surface waters. For this reason they are not classified as waters of the United States by the U.S. Army Corps of Engineers. Nevertheless, they are waters of the State of Ohio and are therefore regulated by the Ohio EPA, Division of Surface Water, Section 401 Wetlands and Streams Permitting Section.

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

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

These written findings are recorded in a final jurisdictional determination (JD) which is sent to the entity requesting the JD and to Ohio EPA. See an example JD, identifying the presence of isolated wetlands.

When a final JD identifies isolated wetlands, regardless of isolated wetland acreage or category, Ohio EPA will send you a letter notifying you of the potential need for an isolated wetland permit application. See an example notification letter.

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

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

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

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

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

Key provisions of the Isolated Wetland Permit fees are:

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

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

When submitting an isolated wetland application, please provide a check, payable to the Treasurer of the State of Ohio for the application fee and the review fees.