The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. H. B. No. 231As Passed by the HouseAs Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
| |
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,
6111.022,
6111.023, 6111.024, 6111.025, 6111.026,
6111.027, 6111.028, and 6111.029 of the
Revised
Code to require the issuance of permits
for
impacts
to isolated wetlands and to declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3745.113, 6111.02, 6111.021,
6111.022,
6111.023, 6111.024, 6111.025, 6111.026, 6111.027,
6111.028, and 6111.029 of the Revised Code be
enacted to read as
follows:
Sec. 3745.113. (A) A person that applies for a state
isolated wetland
permit under Chapter
6111. of the Revised Code
and rules adopted under it shall pay an
application fee of two
hundred dollars at the time of application.
In addition, that person shall pay, at the time of
application, a review fee of five
hundred dollars per acre of the
wetlands to be impacted.
However, the review fee shall not exceed five thousand
dollars per application. In addition, if an application is
denied, the director of environmental protection shall refund to
the applicant one-half of the amount of the review fee paid by the
applicant under division (A) of this section. (B) If a person conducts any activities for which an
individual state
isolated wetland permit is
required under Chapter
6111. of the Revised Code and rules adopted
under it without first
obtaining such a permit, the
person shall pay twice the amount of
the application and review fees that the
person otherwise would
have been required to pay under division
(A) of this section, not
to exceed ten thousand dollars.
(C) All moneys collected under this section shall be
deposited in the state treasury to the credit of the dredge and
fill fund created in section 6111.029 of the Revised Code. (D) Fees established under this section shall not apply to
any agency or department of the state or to any county, township,
or municipal corporation in this state.
Sec. 6111.02. As used in this section and sections 6111.021
to
6111.028 of the Revised Code: (A) "Category 1 wetland," "category 2 wetland," or "category
3 wetland" means a category 1 wetland, category 2 wetland, or
category 3 wetland, respectively, as described in rule 3745-1-54
of the Administrative Code, as that rule existed on the effective
date of this section,
and as determined to be a category 1,
category 2, or category 3
wetland, respectively, through
application of the "Ohio rapid
assessment method for wetlands
version 5.0," including the Ohio rapid assessment method for
wetlands version 5.0 quantitative score calibration dated August
15, 2000, unless an application for a section 401 water quality
certification was submitted prior to February 28, 2001, in which
case the applicant for the permit may elect to proceed in
accordance with Ohio rapid assessment method for wetlands version
4.1. (B) "Creation" means the establishment of a wetland where one
did not formerly exist and that involves wetland construction on
nonhydric soils. (C)
"Enhancement" means activities conducted in an existing
wetland to improve or repair existing or natural wetland functions
and values of that wetland.
(D) "Fill material" means
any material that is used to
fill an aquatic area, to replace an aquatic area with dry land, or
to change
the bottom elevation of a wetland for any purpose. "Fill
material"
does not include either of the following:
(1) Material resulting from normal farming, silviculture,
and ranching activities, such as plowing, cultivating, seeding,
and harvesting, for the production of food, fiber, and forest
products;
(2) Material placed for the purpose of maintenance of
existing structures, 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. (E) "Filling" means the addition of
fill material into a
wetland for the purpose of creating upland, changing the bottom
elevation of the wetland, or creating impoundments of water.
"Filling" includes, without limitation, the placement of the
following in wetlands: fill
material that
is necessary for the
construction of any structure;
structures or
impoundments
requiring rock, sand, dirt, or other
material for
its
construction; site-development fills for
recreational,
industrial,
commercial, residential, or other uses;
causeways or
road fills;
dams and dikes; artificial islands,
property
protection, or
reclamation devices such as riprap, groins,
seawalls, breakwalls,
and bulkheads and fills; beach nourishment;
levees; sanitary
landfills; fill material for structures such as
sewage
treatment
facilities, intake and outfall pipes associated
with
power plants,
and underwater utility lines; and artificial
reefs.
(F) "Isolated wetland" means a wetland that is not subject
to regulation under the Federal Water Pollution Control Act.
(G) "Mitigation" means the restoration, creation,
enhancement, or, in exceptional circumstances, preservation of
wetlands expressly for the purpose of compensating for wetland
impacts. (H)
"Mitigation bank service area" means the designated area
where a mitigation bank can reasonably be expected to provide
appropriate compensation for impacts to wetlands and other aquatic
resources and that is
designated as such in accordance with the
process established in
the "Federal Guidance for the
Establishment, Use and Operation of
Mitigation Banks (1995)," 60
FR 58605. (I) "Off-site mitigation" means wetland restoration,
creation, enhancement, or preservation occurring farther than one
mile from a project boundary, but within the same watershed. (J) "On-site mitigation" means wetland restoration,
creation, enhancement, or preservation occurring within and not
more than one mile from the project boundary and within the same
watershed. (K) "Practicable" means available and capable
of being
executed with existing technology and without significant
adverse
effect on the economic feasibility of the project in light of the
overall project
purposes and in consideration of the relative
environmental benefit. (L) "Preservation" means the protection of ecologically
important wetlands in perpetuity through the implementation of
appropriate legal mechanisms to prevent harm to the wetlands.
"Preservation" may include protection of adjacent upland areas as
necessary to ensure protection of a wetland.
(M) "Restoration" means the reestablishment of a previously
existing wetland at a site where it has ceased to exist. (N) "State isolated wetland permit" means a permit issued in
accordance with sections 6111.02 to 6111.027 of the Revised Code
authorizing the filling of an isolated wetland. (O) "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, United States geological survey, 1988, and as
described in division (F)(2) of rule 3745-1-54 of the
Administrative Code or as otherwise shown on map number 1 found in
rule 3745-1-54 of the Administrative Code. "Watershed" is limited
to those parts of the cataloging units that geographically lie
within the borders of this state. (P) "Wetlands" means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
that are sufficient to support, and that under normal
circumstances do
support, a prevalence of vegetation typically
adapted for life in
saturated soil conditions. "Wetlands"
includes
swamps,
marshes, bogs, and similar areas that
are delineated in
accordance
with the 1987 United States army
corps of engineers
wetland
delineation manual and any other
procedures and
requirements
adopted by the United States army
corps of engineers
for delineating
wetlands. (Q) "Wetland mitigation bank" means a site where wetlands
have been restored, created, enhanced, or, in exceptional
circumstances, preserved expressly for the purpose of providing
mitigation for impacts to wetlands and that has been
approved in
accordance with the process established in the
"Federal Guidance
for the Establishment, Use and Operation of
Mitigation Banks
(1995)," 60 FR 58605.
Sec. 6111.021. (A)(1) The director of environmental
protection shall issue a general state isolated wetland permit or
permits to cover activities within this state for purposes of
section 6111.022 of the Revised Code. A general permit is
effective for five years. Upon the expiration of a general
permit, the director shall issue a new general permit.
(2) The director may issue an individual state isolated
wetland permit for purposes of sections 6111.023 and 6111.024 of
the Revised Code. An individual permit issued under either of
those sections is effective for five years.
(B)
A person that proposes to engage in an
activity that
involves the filling of an isolated wetland shall
apply to the
director for coverage under a general state isolated wetland
permit or shall apply for an
individual state isolated wetland
permit, as applicable, in accordance with sections
6111.02 to
6111.027 of the
Revised Code. No person shall engage
in the
filling of an isolated wetland unless authorized to do so
by a
general or individual state isolated wetland permit. Sections
6111.02 to 6111.027 of the Revised Code do not apply to isolated
wetlands created by previous coal mining activities, except for
wetlands created for mitigation purposes.
(C) The issuance of a general or individual state isolated
wetland permit
constitutes the issuance of a section 401 water
quality
certification for purposes of the Federal Water Pollution
Control
Act.
Sec. 6111.022. (A) A proposed filling of a
category 1 or a
category 2 isolated wetland of one-half acre or less shall
require
a general state isolated wetland permit and be subject to level
one
review
requirements established under division (B) of this
section. (B) Level one review shall apply only to the filling of a
category 1 or a category 2 isolated wetland as
described in
division (A) of this section requiring a general
state isolated
wetland
permit. A level one review shall require the
submission
of a
pre-activity notice that includes an application,
an
acceptable wetland
delineation, a wetland categorization, a
description of
the
project, a description of the acreage of the
isolated wetland that
will be
subject to filling, site
photographs, and a
mitigation proposal for the impact to the
isolated wetland. (C) The proposed filling of an isolated wetland that is
subject to
level one review is authorized by a general state
isolated wetland permit
unless
the director of environmental
protection
notifies the applicant within
thirty days after receipt
of a
pre-activity notice that the
filling of the isolated wetland
will
result in a significant negative
impact on state water
quality. An
applicant that receives such a notice may apply for an
individual
state isolated wetland permit in accordance with the
procedures and
requirements established under section 6111.023 of
the Revised
Code. (D) Required mitigation for the proposed
filling of an
isolated
wetland that is subject to level one
review shall be
conducted by the applicant. Without the objection of the
director
and at the discretion of the applicant, the applicant shall
conduct either on site mitigation, mitigation at a wetland
mitigation bank within the
same
United States army corps of
engineers district as the
location of the proposed filling of the
isolated wetland, or
off-site mitigation. (E) A person that has submitted a pre-activity notice for
coverage under a general state isolated wetland permit under this
section shall complete the filling within two years after the end
of the thirty-day period following the receipt of the pre-activity
notice by the director. If the person does not complete the
filling within that two-year period, the person shall submit a new
pre-activity notice in accordance with this section.
Sec. 6111.023. (A) A proposed filling of a
category 1
isolated wetland of greater than one-half acre or the proposed
filling of a category 2 isolated wetland of greater than one-half
acre, but
less than or equal to three acres shall require an
individual
state isolated wetland permit and be subject to level
two review
requirements established under division (B) of this
section. (B) Level two review shall apply to the filling
of a
category 1 or a category 2 isolated wetland described in division
(A)
of this section and shall require all of the following:
(1) All of the information required to be submitted with a
pre-activity notice as described in division (B) of section
6111.022 of the Revised Code; (2) Identification of the source of the fill material to be
used
for the filling; (3) The submission of an analysis of practicable on-site
alternatives
to the proposed filling of the isolated wetland
that
would have a less adverse impact on the isolated wetland
ecosystem; (4) The submission of information indicating whether high
quality waters, as defined in rule 3745-1-05 of the Administrative
Code, are to be avoided by the proposed filling of the isolated
wetland. (C) The director of environmental protection shall issue or
deny an individual state isolated
wetland permit for the proposed
filling
of an isolated wetland
that is subject to level two review
not
later than
ninety days after the receipt of an application for
the
permit.
The director shall issue an individual state isolated
wetland
permit
for the proposed filling of an isolated wetland
that is
subject to level
two review unless the director determines
that
the applicant for
the permit has failed to demonstrate all of
the
following: (1) There is no practicable on-site alternative to the
proposed filling of the isolated wetland that would have a less
adverse impact on the isolated wetland ecosystem. (2) Reasonable buffers have been provided for any isolated
wetland
that will be
avoided at the site where the proposed
filling of the
isolated wetland will take place. (3) The isolated wetland that will be subject to filling
is
not
locally or regionally
scarce within the watershed in
which it
is located and does not
contain rare,
threatened, or endangered
species. (4) The impact would not result in significant degradation
to the aquatic ecosystem. (5) Appropriate mitigation has been proposed
for any
unavoidable impacts. (6) Storm water and water quality controls will be installed
to ensure that peak post-development rates of surface water runoff
from the impacted isolated wetland do not exceed the peak
pre-development
rates of runoff from the on-site isolated wetland.
Water
quality
improvement measures shall be incorporated into the
design
of the
storm water control measures to the maximum extent
practicable.
Examples of these measures include, but are not
limited to,
incorporating vegetated areas in a storm water
control
plan. (7) Any additional, practicable, site-specific requirements
that are
determined necessary by the director to protect water
quality have
been satisfied. (D)(1) Notwithstanding an applicant's demonstration under
division (C) of this section, the director may deny an application
for an individual state isolated wetland permit submitted under
this section if the director determines that the proposed filling
of the isolated wetland will result in an adverse short-term or
long-term impact on water quality.
(2) The director may impose any practicable terms and
conditions on an individual state isolated wetland permit issued
under this section that are appropriate or necessary to ensure
adequate protection of state water quality and to ensure
compliance with this chapter and rules adopted under it.
(3) Prior to the issuance of an individual state isolated
wetland permit under this section, or prior to, during, or after
the filling of the isolated wetland that is the subject of the
permit, the director may require that the applicant or permit
holder perform various environmental quality tests, including,
without limitation, chemical analyses of water, sediment, or fill
material and bioassays, in order to ensure adequate protection of
water quality.
(E)(1) Mitigation
for the proposed
filling of a
category 1
isolated wetland that is subject to level two
review
shall be
conducted by the applicant. Without the objection of the director
and at the discretion of the applicant, the applicant shall
conduct either on site mitigation, mitigation at a
wetland
mitigation bank
within the same United States army corps
of
engineers district as
the location of the proposed filling of the
isolated wetland, or
off-site mitigation. (2)
Mitigation
for the proposed filling of a
category 2
isolated wetland that
is subject to level two
review
shall be
conducted by the applicant and shall occur
in the
following
preferred order:
(a) Practicable on-site mitigation; (b) Reasonably identifiable, available, and
practicable
off-site
mitigation within the same watershed; (c) If the proposed filling
of the
isolated wetland will
take place within a mitigation bank
service area,
within that
mitigation bank
service area; (d) If there is a significant ecological reason
that the
mitigation location should not be limited to the
watershed in
which the isolated wetland is located and if the proposed
mitigation will result in a substantially greater ecological
benefit, in a watershed that is adjacent to the watershed in which
the isolated wetland is located.
Sec. 6111.024. (A) A proposed filling of a
category 2
isolated wetland of greater than three acres or a category 3
isolated
wetland shall require an individual state isolated
wetland permit
and be
subject to level three review requirements
established
under
division (B) of this section. (B) Level three review shall apply to the filling of a
category 2 or a category 3 isolated wetland described in
division
(A) of this section and shall require all of the
following: (1) All of the information required to be submitted with a
pre-activity notice as described in division (B) of section
6111.022 of the
Revised Code; (2) A full antidegradation review conducted in accordance
with rules adopted under section 6111.12 of the Revised Code; (3) The submission of information indicating whether high
quality waters, as defined in rule 3745-1-05 of the Administrative
Code, are to be avoided by the proposed filling of the isolated
wetland. (C) The director of environmental protection shall issue
or
deny an individual state isolated
wetland permit for the proposed
filling
of an isolated wetland
that is subject to level three
review not
later than one hundred eighty
days after the receipt of
an
application for the permit. The
director shall not issue an
individual state isolated wetland permit for
the proposed
filling
of an isolated
wetland that is subject to level three review
unless
the
director determines that the applicant for the permit
has
demonstrated that the proposed filling will not
prevent or
interfere with the attainment or maintenance of
applicable state
water quality standards. (D)(1) Notwithstanding division (C) of this section, the
director also may deny an application for an individual state
isolated wetland permit submitted under this section if the
director determines that the proposed filling of the isolated
wetland will
result in an adverse short-term or long-term impact
on water
quality. (2) The director may impose terms and conditions on an
individual state isolated wetland permit issued under this section
that are
appropriate or necessary to ensure adequate protection of
state
water quality and to ensure compliance with this chapter and
rules
adopted under it. (3) Prior to the issuance of an individual state isolated
wetland
permit under this section, or prior to, during, or after
the
filling of the isolated wetland that is the subject of the
permit, the director may require that the applicant or permit
holder perform various environmental quality tests, including,
without limitation, chemical analyses of water, sediment, or fill
material and bioassays, in order to ensure adequate protection of
water quality. (E) Mitigation for the proposed
filling of a
category 2 or a
category 3 isolated wetland that is subject
to
level three
review
shall occur in the following preferred
order: (1) Practicable on-site mitigation; (2) Reasonably identifiable, available, and
practicable
off-site mitigation within the same
watershed; (3) If the proposed filling of the
isolated wetland will
take place within a mitigation bank service area,
within that
mitigation bank service area; (4) If there is a significant ecological reason that
the
mitigation location should not be limited to the watershed in
which the isolated wetland is located and if the proposed
mitigation will
result in a substantially greater ecological
benefit, in a
watershed that is adjacent to the watershed in which
the isolated wetland
is located.
Sec. 6111.025. (A) The director of natural resources in
consultation with the director of environmental protection shall
establish a list of approved wetland mitigation banks that shall
be used by applicants for state isolated wetland permits for
mitigation
purposes and shall submit the list to the director of
environmental protection. In establishing the list, the
director
of
natural resources shall give preference to wetland
mitigation
banks that are comprised of areas involving the
restoration of
previously existing wetlands. The list established under this
division shall not exclude state or local
agencies from developing
wetland mitigation banks. (B) The department of natural resources, the division of
wildlife in that department, or any other division in
that
department that is designated by the director of natural resources
may establish and operate a wetland mitigation bank for
purposes
of sections 6111.02 to 6111.027 of the Revised Code. A
mitigation
bank so established may be used by any individual or
entity,
including any agency or department of the state, for
mitigation
purposes under those sections. (C) The director of environmental protection annually shall
issue a report to the members of the general assembly on the total
number of acres of isolated wetlands that were subject to filling
during the immediately preceding year as well as the total number
of acres of isolated wetlands that were restored, created,
enhanced, or preserved through mitigation that same year as a
result of state isolated wetland permits issued under sections
6111.02 to 6111.027 of the Revised Code.
Sec. 6111.026. (A)(1) The director of environmental
protection
shall prescribe the form of the application for a
general state isolated
wetland permit and for an individual state
isolated wetland permit. (2) The director shall provide an explanation to an
applicant for an individual state isolated wetland permit of the
basis for the proposed denial of the application. (B) Within fifteen business days after the receipt of an
application for
an individual state isolated wetland permit, the
director
shall notify the
applicant if the application is
complete. 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. Time
periods specified in
sections 6111.02 to 6111.027 of the Revised
Code shall not apply
until the application
is
determined by the
director to be
complete. If the applicant
fails
to provide
information or
materials that are necessary to
complete
the
application within
sixty days after the director's
receipt of
the
application, the
director may return the incomplete
application to
the applicant
and take no further action on the
application. (C) Except as provided in division (D) of this section, the
director shall publish notice of the receipt of a
complete
application for an individual state isolated wetland permit in a
newspaper
of general circulation in the county in which the
proposed
filling
of
the isolated wetland that is the subject of
the
application is
to
take place. The director shall accept
comments
concerning the
application and requests for a public
hearing
concerning the
application for not more than fourteen days
following the
publication of notice concerning the application. If a public
hearing is requested during the fourteen-day
comment
period and the
director determines that there is
significant
public interest, the
director or the director's
representative
shall conduct a public
hearing concerning the
application. Notice
of the public hearing
shall be published not
later than thirty
days prior to the date of
the hearing in a
newspaper of general
circulation in the county
in which the
proposed
filling of the isolated
wetland that is the
subject of
the application is
to take
place. If a public hearing
is
requested concerning an
application, the director shall accept
comments concerning the
application until five business days after
the public hearing. A
public hearing conducted under this
division shall take place not
later than seventy days after the
receipt of the
application. (D) Applications for individual state isolated wetland
permits
submitted under section 6111.024 of the Revised Code and
the issuance of a general state isolated wetland permit under
section 6111.021 of the Revised Code are subject
to rules adopted
under section 6111.12 of the Revised Code
governing public notice
and participation.
(E) When an application for a state isolated wetland permit
is
changed, altered, or amended after a public hearing was
conducted in accordance with division (C) or (D) of this section,
a second hearing shall not be required for the changed, altered,
or amended application if the scope of the proposed filling that
is
proposed by the original application has not changed or the
proposed filling has been reduced from that proposed
in the
original application.
Sec. 6111.027. (A) Mitigation for impacts to isolated
wetlands under sections 6111.02 to 6111.027 shall be conducted in
accordance with the following ratios:
(1) For category 1 and category 2 isolated wetlands, other
than
forested category 2 isolated wetlands, mitigation located at
an approved wetland mitigation bank shall be
conducted at a rate
of two times the size of the area of isolated
wetland that is
being
impacted.
(2) For forested category 2 isolated wetlands, mitigation
located at an approved wetland mitigation bank shall be conducted
at a rate of two and one-half
times the size of the area of
isolated wetland that is being impacted.
(3) All other mitigation shall be subject to
mitigation
ratios established in division (F) of rule 3745-1-54 of
the
Administrative Code. (B) Mitigation that involves the enhancement or preservation
of isolated wetlands shall be calculated and performed in
accordance with rule 3745-1-54 of the Administrative Code.
(C) An applicant for coverage under a general state
isolated wetland permit or for an individual state isolated
wetland permit under sections 6111.022 to 6111.024 of the Revised
Code shall demonstrate that the mitigation site will be protected
in perpetuity and that appropriate practicable management measures
are, or will be, in place to restrict harmful activities that
jeopardize the mitigation.
Sec. 6111.028. (A) The discharge of dredged material into
isolated wetlands is subject to sections 6111.021 to 6111.027 of
the Revised Code.
(B) As used in this section: (1) "Discharge of dredged material" has the same meaning as
in 33 CFR 323.2 as effective February 16, 2001.
(2) "Dredged material" means material that is excavated or
dredged from isolated wetlands. "Dredged material" does not
include material resulting from normal farming, silviculture, and
ranching activities, such as plowing, cultivating, seeding, and
harvesting, for production of food, fiber, and forest products.
Sec. 6111.029. There is hereby created in the state treasury
the dredge and fill fund consisting of moneys credited to it under
section 3745.113 of the Revised Code. The director of
environmental protection shall use moneys in the fund solely for
the purpose of administering sections 6111.02 to 6111.029 of the
Revised Code.
Section 2. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is that
the protection of isolated wetlands is of vital importance to the
state's
environment and natural resources. Therefore, this act
shall go
into immediate effect.
|
|