As Passed by the House

124th General Assembly
Regular Session
2001-2002
Sub. H. B. No. 231


REPRESENTATIVES Faber, Cates, Seitz, Calvert, Husted, Gilb, Hartnett, Raga, Schmidt, Lendrum, Setzer, Evans, Core, DeWine, Webster, Collier, Damschroder, Carmichael, Manning, Reinhard, Widowfield, Flowers, Blasdel, Callender, Hoops, Jolivette, Seaver, Carano, Sferra, Ogg, Britton, Distel, Buehrer, Coates, Fessler



A BILL
To enact sections 3745.113, 6111.02, 6111.021,1
6111.022, 6111.023, 6111.024, 6111.025, 6111.026,2
6111.027, 6111.028, and 6111.029 of the Revised3
Code to require the issuance of permits for impacts4
to isolated wetlands and to declare an emergency.5


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

       Section 1. That sections 3745.113, 6111.02, 6111.021,6
6111.022, 6111.023, 6111.024, 6111.025, 6111.026, 6111.027,7
6111.028, and 6111.029 of the Revised Code be enacted to read as8
follows:9

       Sec. 3745.113. (A) A person that applies for a state10
isolated wetland permit under Chapter 6111. of the Revised Code11
and rules adopted under it shall pay an application fee of two12
hundred dollars at the time of application.13

       In addition, that person shall pay, at the time of14
application, a review fee of five hundred dollars per acre of the15
wetlands to be impacted.16

       However, the review fee shall not exceed five thousand17
dollars per application. In addition, if an application is18
denied, the director of environmental protection shall refund to19
the applicant one-half of the amount of the review fee paid by the20
applicant under division (A) of this section.21

       (B) If a person conducts any activities for which an22
individual state isolated wetland permit is required under Chapter23
6111. of the Revised Code and rules adopted under it without first24
obtaining such a permit, the person shall pay twice the amount of25
the application and review fees that the person otherwise would26
have been required to pay under division (A) of this section, not27
to exceed ten thousand dollars.28

       (C) All moneys collected under this section shall be29
deposited in the state treasury to the credit of the dredge and30
fill fund created in section 6111.029 of the Revised Code.31

       (D) Fees established under this section shall not apply to32
any agency or department of the state or to any county, township,33
or municipal corporation in this state.34

       Sec. 6111.02. As used in this section and sections 6111.02135
to 6111.028 of the Revised Code:36

       (A) "Category 1 wetland," "category 2 wetland," or "category37
3 wetland" means a category 1 wetland, category 2 wetland, or38
category 3 wetland, respectively, as described in rule 3745-1-5439
of the Administrative Code, as that rule existed on the effective40
date of this section, and as determined to be a category 1,41
category 2, or category 3 wetland, respectively, through42
application of the "Ohio rapid assessment method for wetlands43
version 5.0," including the Ohio rapid assessment method for44
wetlands version 5.0 quantitative score calibration dated August45
15, 2000, unless an application for a section 401 water quality46
certification was submitted prior to February 28, 2001, in which47
case the applicant for the permit may elect to proceed in48
accordance with Ohio rapid assessment method for wetlands version49
4.1.50

       (B) "Creation" means the establishment of a wetland where one51
did not formerly exist and that involves wetland construction on52
nonhydric soils.53

       (C) "Enhancement" means activities conducted in an existing54
wetland to improve or repair existing or natural wetland functions55
and values of that wetland.56

       (D) "Fill material" means any material that is used to57
fill an aquatic area, to replace an aquatic area with dry land, or58
to change the bottom elevation of a wetland for any purpose. "Fill59
material" does not include either of the following:60

        (1) Material resulting from normal farming, silviculture,61
and ranching activities, such as plowing, cultivating, seeding,62
and harvesting, for the production of food, fiber, and forest63
products;64

        (2) Material placed for the purpose of maintenance of65
existing structures, including emergency reconstruction of66
recently damaged parts of currently serviceable structures such as67
dikes, dams, levees, groins, riprap, breakwaters, causeways, and68
bridge abutments or approaches, and transportation structures.69

       (E) "Filling" means the addition of fill material into a70
wetland for the purpose of creating upland, changing the bottom71
elevation of the wetland, or creating impoundments of water.72
"Filling" includes, without limitation, the placement of the73
following in wetlands: fill material that is necessary for the74
construction of any structure; structures or impoundments75
requiring rock, sand, dirt, or other material for its76
construction; site-development fills for recreational, industrial,77
commercial, residential, or other uses; causeways or road fills;78
dams and dikes; artificial islands, property protection, or79
reclamation devices such as riprap, groins, seawalls, breakwalls,80
and bulkheads and fills; beach nourishment; levees; sanitary81
landfills; fill material for structures such as sewage treatment82
facilities, intake and outfall pipes associated with power plants,83
and underwater utility lines; and artificial reefs.84

       (F) "Isolated wetland" means a wetland that is not subject85
to regulation under the Federal Water Pollution Control Act.86

        (G) "Mitigation" means the restoration, creation,87
enhancement, or, in exceptional circumstances, preservation of88
wetlands expressly for the purpose of compensating for wetland89
impacts.90

       (H) "Mitigation bank service area" means the designated area91
where a mitigation bank can reasonably be expected to provide92
appropriate compensation for impacts to wetlands and other aquatic93
resources and that is designated as such in accordance with the94
process established in the "Federal Guidance for the95
Establishment, Use and Operation of Mitigation Banks (1995)," 6096
FR 58605.97

       (I) "Off-site mitigation" means wetland restoration,98
creation, enhancement, or preservation occurring farther than one99
mile from a project boundary, but within the same watershed.100

        (J) "On-site mitigation" means wetland restoration,101
creation, enhancement, or preservation occurring within and not102
more than one mile from the project boundary and within the same103
watershed.104

       (K) "Practicable" means available and capable of being105
executed with existing technology and without significant adverse106
effect on the economic feasibility of the project in light of the107
overall project purposes and in consideration of the relative108
environmental benefit.109

       (L) "Preservation" means the protection of ecologically110
important wetlands in perpetuity through the implementation of111
appropriate legal mechanisms to prevent harm to the wetlands.112
"Preservation" may include protection of adjacent upland areas as113
necessary to ensure protection of a wetland.114

        (M) "Restoration" means the reestablishment of a previously115
existing wetland at a site where it has ceased to exist.116

       (N) "State isolated wetland permit" means a permit issued in117
accordance with sections 6111.02 to 6111.027 of the Revised Code118
authorizing the filling of an isolated wetland.119

       (O) "Watershed" means a common surface drainage area120
corresponding to one from the list of thirty-seven adapted from121
the forty-four cataloging units as depicted on the hydrologic unit122
map of Ohio, United States geological survey, 1988, and as123
described in division (F)(2) of rule 3745-1-54 of the124
Administrative Code or as otherwise shown on map number 1 found in125
rule 3745-1-54 of the Administrative Code. "Watershed" is limited126
to those parts of the cataloging units that geographically lie127
within the borders of this state.128

       (P) "Wetlands" means those areas that are inundated or129
saturated by surface or ground water at a frequency and duration130
that are sufficient to support, and that under normal131
circumstances do support, a prevalence of vegetation typically132
adapted for life in saturated soil conditions. "Wetlands" includes133
swamps, marshes, bogs, and similar areas that are delineated in134
accordance with the 1987 United States army corps of engineers135
wetland delineation manual and any other procedures and136
requirements adopted by the United States army corps of engineers137
for delineating wetlands.138

       (Q) "Wetland mitigation bank" means a site where wetlands139
have been restored, created, enhanced, or, in exceptional140
circumstances, preserved expressly for the purpose of providing141
mitigation for impacts to wetlands and that has been approved in142
accordance with the process established in the "Federal Guidance143
for the Establishment, Use and Operation of Mitigation Banks144
(1995)," 60 FR 58605.145

       Sec. 6111.021. (A)(1) The director of environmental146
protection shall issue a general state isolated wetland permit or147
permits to cover activities within this state for purposes of148
section 6111.022 of the Revised Code. A general permit is149
effective for five years. Upon the expiration of a general150
permit, the director shall issue a new general permit.151

        (2) The director may issue an individual state isolated152
wetland permit for purposes of sections 6111.023 and 6111.024 of153
the Revised Code. An individual permit issued under either of154
those sections is effective for five years.155

        (B) A person that proposes to engage in an activity that156
involves the filling of an isolated wetland shall apply to the157
director for coverage under a general state isolated wetland158
permit or shall apply for an individual state isolated wetland159
permit, as applicable, in accordance with sections 6111.02 to160
6111.027 of the Revised Code. No person shall engage in the161
filling of an isolated wetland unless authorized to do so by a162
general or individual state isolated wetland permit. Sections163
6111.02 to 6111.027 of the Revised Code do not apply to isolated164
wetlands created by previous coal mining activities, except for165
wetlands created for mitigation purposes.166

       (C) The issuance of a general or individual state isolated167
wetland permit constitutes the issuance of a section 401 water168
quality certification for purposes of the Federal Water Pollution169
Control Act.170

       Sec. 6111.022. (A) A proposed filling of a category 1 or a171
category 2 isolated wetland of one-half acre or less shall require172
a general state isolated wetland permit and be subject to level173
one review requirements established under division (B) of this174
section.175

       (B) Level one review shall apply only to the filling of a176
category 1 or a category 2 isolated wetland as described in177
division (A) of this section requiring a general state isolated178
wetland permit. A level one review shall require the submission179
of a pre-activity notice that includes an application, an180
acceptable wetland delineation, a wetland categorization, a181
description of the project, a description of the acreage of the182
isolated wetland that will be subject to filling, site183
photographs, and a mitigation proposal for the impact to the184
isolated wetland.185

       (C) The proposed filling of an isolated wetland that is186
subject to level one review is authorized by a general state187
isolated wetland permit unless the director of environmental188
protection notifies the applicant within thirty days after receipt189
of a pre-activity notice that the filling of the isolated wetland190
will result in a significant negative impact on state water191
quality. An applicant that receives such a notice may apply for an192
individual state isolated wetland permit in accordance with the193
procedures and requirements established under section 6111.023 of194
the Revised Code.195

       (D) Required mitigation for the proposed filling of an196
isolated wetland that is subject to level one review shall be197
conducted by the applicant. Without the objection of the director198
and at the discretion of the applicant, the applicant shall199
conduct either on site mitigation, mitigation at a wetland200
mitigation bank within the same United States army corps of201
engineers district as the location of the proposed filling of the202
isolated wetland, or off-site mitigation.203

       (E) A person that has submitted a pre-activity notice for204
coverage under a general state isolated wetland permit under this205
section shall complete the filling within two years after the end206
of the thirty-day period following the receipt of the pre-activity207
notice by the director. If the person does not complete the208
filling within that two-year period, the person shall submit a new209
pre-activity notice in accordance with this section.210

       Sec. 6111.023. (A) A proposed filling of a category 1211
isolated wetland of greater than one-half acre or the proposed212
filling of a category 2 isolated wetland of greater than one-half213
acre, but less than or equal to three acres shall require an214
individual state isolated wetland permit and be subject to level215
two review requirements established under division (B) of this216
section.217

       (B) Level two review shall apply to the filling of a218
category 1 or a category 2 isolated wetland described in division219
(A) of this section and shall require all of the following:220

       (1) All of the information required to be submitted with a221
pre-activity notice as described in division (B) of section222
6111.022 of the Revised Code;223

       (2) Identification of the source of the fill material to be224
used for the filling;225

       (3) The submission of an analysis of practicable on-site226
alternatives to the proposed filling of the isolated wetland that227
would have a less adverse impact on the isolated wetland228
ecosystem;229

       (4) The submission of information indicating whether high230
quality waters, as defined in rule 3745-1-05 of the Administrative231
Code, are to be avoided by the proposed filling of the isolated232
wetland.233

       (C) The director of environmental protection shall issue or234
deny an individual state isolated wetland permit for the proposed235
filling of an isolated wetland that is subject to level two review236
not later than ninety days after the receipt of an application for237
the permit. The director shall issue an individual state isolated238
wetland permit for the proposed filling of an isolated wetland239
that is subject to level two review unless the director determines240
that the applicant for the permit has failed to demonstrate all of241
the following:242

       (1) There is no practicable on-site alternative to the243
proposed filling of the isolated wetland that would have a less244
adverse impact on the isolated wetland ecosystem.245

       (2) Reasonable buffers have been provided for any isolated246
wetland that will be avoided at the site where the proposed247
filling of the isolated wetland will take place.248

       (3) The isolated wetland that will be subject to filling is249
not locally or regionally scarce within the watershed in which it250
is located and does not contain rare, threatened, or endangered251
species.252

       (4) The impact would not result in significant degradation253
to the aquatic ecosystem.254

       (5) Appropriate mitigation has been proposed for any255
unavoidable impacts.256

       (6) Storm water and water quality controls will be installed257
to ensure that peak post-development rates of surface water runoff258
from the impacted isolated wetland do not exceed the peak259
pre-development rates of runoff from the on-site isolated wetland.260
Water quality improvement measures shall be incorporated into the261
design of the storm water control measures to the maximum extent262
practicable. Examples of these measures include, but are not263
limited to, incorporating vegetated areas in a storm water control264
plan.265

       (7) Any additional, practicable, site-specific requirements266
that are determined necessary by the director to protect water267
quality have been satisfied.268

       (D)(1) Notwithstanding an applicant's demonstration under269
division (C) of this section, the director may deny an application270
for an individual state isolated wetland permit submitted under271
this section if the director determines that the proposed filling272
of the isolated wetland will result in an adverse short-term or273
long-term impact on water quality.274

        (2) The director may impose any practicable terms and275
conditions on an individual state isolated wetland permit issued276
under this section that are appropriate or necessary to ensure277
adequate protection of state water quality and to ensure278
compliance with this chapter and rules adopted under it.279

        (3) Prior to the issuance of an individual state isolated280
wetland permit under this section, or prior to, during, or after281
the filling of the isolated wetland that is the subject of the282
permit, the director may require that the applicant or permit283
holder perform various environmental quality tests, including,284
without limitation, chemical analyses of water, sediment, or fill285
material and bioassays, in order to ensure adequate protection of286
water quality.287

        (E)(1) Mitigation for the proposed filling of a category 1288
isolated wetland that is subject to level two review shall be289
conducted by the applicant. Without the objection of the director290
and at the discretion of the applicant, the applicant shall291
conduct either on site mitigation, mitigation at a wetland292
mitigation bank within the same United States army corps of293
engineers district as the location of the proposed filling of the294
isolated wetland, or off-site mitigation.295

       (2) Mitigation for the proposed filling of a category 2296
isolated wetland that is subject to level two review shall be297
conducted by the applicant and shall occur in the following298
preferred order:299

       (a) Practicable on-site mitigation;300

       (b) Reasonably identifiable, available, and practicable301
off-site mitigation within the same watershed;302

       (c) If the proposed filling of the isolated wetland will303
take place within a mitigation bank service area, within that304
mitigation bank service area;305

       (d) If there is a significant ecological reason that the306
mitigation location should not be limited to the watershed in307
which the isolated wetland is located and if the proposed308
mitigation will result in a substantially greater ecological309
benefit, in a watershed that is adjacent to the watershed in which310
the isolated wetland is located.311

       Sec. 6111.024. (A) A proposed filling of a category 2 312
isolated wetland of greater than three acres or a category 3313
isolated wetland shall require an individual state isolated314
wetland permit and be subject to level three review requirements315
established under division (B) of this section.316

       (B) Level three review shall apply to the filling of a317
category 2 or a category 3 isolated wetland described in division318
(A) of this section and shall require all of the following:319

       (1) All of the information required to be submitted with a320
pre-activity notice as described in division (B) of section321
6111.022 of the Revised Code;322

       (2) A full antidegradation review conducted in accordance323
with rules adopted under section 6111.12 of the Revised Code;324

       (3) The submission of information indicating whether high325
quality waters, as defined in rule 3745-1-05 of the Administrative326
Code, are to be avoided by the proposed filling of the isolated 327
wetland.328

       (C) The director of environmental protection shall issue or329
deny an individual state isolated wetland permit for the proposed330
filling of an isolated wetland that is subject to level three331
review not later than one hundred eighty days after the receipt of332
an application for the permit. The director shall not issue an333
individual state isolated wetland permit for the proposed filling334
of an isolated wetland that is subject to level three review335
unless the director determines that the applicant for the permit336
has demonstrated that the proposed filling will not prevent or337
interfere with the attainment or maintenance of applicable state338
water quality standards.339

       (D)(1) Notwithstanding division (C) of this section, the340
director also may deny an application for an individual state341
isolated wetland permit submitted under this section if the342
director determines that the proposed filling of the isolated343
wetland will result in an adverse short-term or long-term impact344
on water quality.345

       (2) The director may impose terms and conditions on an346
individual state isolated wetland permit issued under this section347
that are appropriate or necessary to ensure adequate protection of348
state water quality and to ensure compliance with this chapter and349
rules adopted under it.350

       (3) Prior to the issuance of an individual state isolated351
wetland permit under this section, or prior to, during, or after352
the filling of the isolated wetland that is the subject of the353
permit, the director may require that the applicant or permit354
holder perform various environmental quality tests, including,355
without limitation, chemical analyses of water, sediment, or fill356
material and bioassays, in order to ensure adequate protection of357
water quality.358

       (E) Mitigation for the proposed filling of a category 2 or a359
category 3 isolated wetland that is subject to level three review360
shall occur in the following preferred order:361

       (1) Practicable on-site mitigation;362

       (2) Reasonably identifiable, available, and practicable363
off-site mitigation within the same watershed;364

       (3) If the proposed filling of the isolated wetland will365
take place within a mitigation bank service area, within that366
mitigation bank service area;367

       (4) If there is a significant ecological reason that the368
mitigation location should not be limited to the watershed in369
which the isolated wetland is located and if the proposed370
mitigation will result in a substantially greater ecological371
benefit, in a watershed that is adjacent to the watershed in which372
the isolated wetland is located.373

       Sec. 6111.025. (A) The director of natural resources in374
consultation with the director of environmental protection shall375
establish a list of approved wetland mitigation banks that shall376
be used by applicants for state isolated wetland permits for377
mitigation purposes and shall submit the list to the director of378
environmental protection. In establishing the list, the director379
of natural resources shall give preference to wetland mitigation380
banks that are comprised of areas involving the restoration of381
previously existing wetlands. The list established under this382
division shall not exclude state or local agencies from developing383
wetland mitigation banks.384

       (B) The department of natural resources, the division of385
wildlife in that department, or any other division in that386
department that is designated by the director of natural resources387
may establish and operate a wetland mitigation bank for purposes388
of sections 6111.02 to 6111.027 of the Revised Code. A mitigation389
bank so established may be used by any individual or entity,390
including any agency or department of the state, for mitigation391
purposes under those sections.392

       (C) The director of environmental protection annually shall393
issue a report to the members of the general assembly on the total394
number of acres of isolated wetlands that were subject to filling395
during the immediately preceding year as well as the total number396
of acres of isolated wetlands that were restored, created,397
enhanced, or preserved through mitigation that same year as a398
result of state isolated wetland permits issued under sections399
6111.02 to 6111.027 of the Revised Code.400

       Sec. 6111.026. (A)(1) The director of environmental401
protection shall prescribe the form of the application for a402
general state isolated wetland permit and for an individual state403
isolated wetland permit.404

       (2) The director shall provide an explanation to an405
applicant for an individual state isolated wetland permit of the406
basis for the proposed denial of the application.407

       (B) Within fifteen business days after the receipt of an408
application for an individual state isolated wetland permit, the409
director shall notify the applicant if the application is410
complete. If the application is not complete, the director shall411
include in the notice an itemized list of the information or412
materials that are necessary to complete the application. Time413
periods specified in sections 6111.02 to 6111.027 of the Revised414
Code shall not apply until the application is determined by the415
director to be complete. If the applicant fails to provide416
information or materials that are necessary to complete the417
application within sixty days after the director's receipt of the418
application, the director may return the incomplete application to419
the applicant and take no further action on the application.420

       (C) Except as provided in division (D) of this section, the421
director shall publish notice of the receipt of a complete422
application for an individual state isolated wetland permit in a423
newspaper of general circulation in the county in which the424
proposed filling of the isolated wetland that is the subject of425
the application is to take place. The director shall accept426
comments concerning the application and requests for a public427
hearing concerning the application for not more than fourteen days428
following the publication of notice concerning the application.429

       If a public hearing is requested during the fourteen-day430
comment period and the director determines that there is431
significant public interest, the director or the director's432
representative shall conduct a public hearing concerning the433
application. Notice of the public hearing shall be published not434
later than thirty days prior to the date of the hearing in a435
newspaper of general circulation in the county in which the436
proposed filling of the isolated wetland that is the subject of437
the application is to take place. If a public hearing is438
requested concerning an application, the director shall accept439
comments concerning the application until five business days after440
the public hearing. A public hearing conducted under this441
division shall take place not later than seventy days after the442
receipt of the application.443

       (D) Applications for individual state isolated wetland444
permits submitted under section 6111.024 of the Revised Code and445
the issuance of a general state isolated wetland permit under446
section 6111.021 of the Revised Code are subject to rules adopted447
under section 6111.12 of the Revised Code governing public notice448
and participation.449

       (E) When an application for a state isolated wetland permit450
is changed, altered, or amended after a public hearing was451
conducted in accordance with division (C) or (D) of this section,452
a second hearing shall not be required for the changed, altered,453
or amended application if the scope of the proposed filling that454
is proposed by the original application has not changed or the455
proposed filling has been reduced from that proposed in the456
original application.457

       Sec. 6111.027.  (A) Mitigation for impacts to isolated458
wetlands under sections 6111.02 to 6111.027 shall be conducted in459
accordance with the following ratios:460

       (1) For category 1 and category 2 isolated wetlands, other461
than forested category 2 isolated wetlands, mitigation located at462
an approved wetland mitigation bank shall be conducted at a rate463
of two times the size of the area of isolated wetland that is464
being impacted.465

       (2) For forested category 2 isolated wetlands, mitigation466
located at an approved wetland mitigation bank shall be conducted467
at a rate of two and one-half times the size of the area of468
isolated wetland that is being impacted.469

        (3) All other mitigation shall be subject to mitigation470
ratios established in division (F) of rule 3745-1-54 of the471
Administrative Code.472

       (B) Mitigation that involves the enhancement or preservation473
of isolated wetlands shall be calculated and performed in474
accordance with rule 3745-1-54 of the Administrative Code.475

        (C) An applicant for coverage under a general state476
isolated wetland permit or for an individual state isolated477
wetland permit under sections 6111.022 to 6111.024 of the Revised478
Code shall demonstrate that the mitigation site will be protected479
in perpetuity and that appropriate practicable management measures480
are, or will be, in place to restrict harmful activities that481
jeopardize the mitigation.482

       Sec. 6111.028. (A) The discharge of dredged material into483
isolated wetlands is subject to sections 6111.021 to 6111.027 of484
the Revised Code.485

        (B) As used in this section:486

       (1) "Discharge of dredged material" has the same meaning as487
in 33 CFR 323.2 as effective February 16, 2001.488

        (2) "Dredged material" means material that is excavated or489
dredged from isolated wetlands. "Dredged material" does not490
include material resulting from normal farming, silviculture, and491
ranching activities, such as plowing, cultivating, seeding, and492
harvesting, for production of food, fiber, and forest products.493

       Sec. 6111.029. There is hereby created in the state treasury494
the dredge and fill fund consisting of moneys credited to it under495
section 3745.113 of the Revised Code. The director of496
environmental protection shall use moneys in the fund solely for497
the purpose of administering sections 6111.02 to 6111.029 of the498
Revised Code.499

       Section 2. This act is hereby declared to be an emergency500
measure necessary for the immediate preservation of the public501
peace, health, and safety. The reason for such necessity is that502
the protection of isolated wetlands is of vital importance to the503
state's environment and natural resources. Therefore, this act504
shall go into immediate effect.505