2 Role of ODOT’s Waterway Permits Unit Review projects that impact aquatic resources and determine the appropriate level of permitting.Permit Determination Inter-office Communication & FormPrepare & review permit applications & NEPA documents.Coordinate permit applications with USACE, OEPA, and USCG.Negotiate 404/401 permit conditions.Develop/review all stream and wetland mitigation proposals.Provide comments on draft 404 and 401 regulations.Assist Eco Unit with wetland delineations, Jurisdictional Determinations (JD), and endangered species surveys.
3 Role of ODOT’s Waterway Permits Unit Maintain the Waterway Permit ManualThe Manual:provide guidelines for preparing waterway permit applicationsEnsures consistency and completenessProvides templates, examples, and linksIs a link between ODOT’S Project Development Process and our waterway permitting processTo view the Waterway Permits Manual:ent/Ecological_Resources_Permits/WATERWAY_PER MITS/Documents/WaterwayPermitsManual pdf
4 NEPA and the Waterway Permit Unit Once a “NEPA Corridor” is selected we can address the permitting for impacts to wetlands, streams, and other regulated waters within that corridor. We also address avoidance, minimization, and mitigation of those resources.
5 Waterway Permit Background What is a permit?Authorization to perform a regulated activity in a specific manner.Primary method by which regulatory agencies ensure compliance with environmental laws, rules, and regulations.Means for obtaining various authorizations to discharge fill or dredged material into waters of the U.S. and/or waters of the State
6 Waterway Permit Background What is a discharge fill or dredged material?Material placed in waters of the U.S. (or State) that:1) replaces water with dry land2) changes the bottom elevation of a waterbodyAll discharges of dredged or fill material (regardless of size or length) require a permit.
7 Waterway Permit Background What is a water of the U.S.?All interstate waters (lakes, streams, rivers, wetlands tributary to TNW)Formal definition can be found in 33 CFR 328.3(a).What is a water of the State?All intrastate waters (lakes, streams, rivers, wetlands & isolated wetlands)Formal definition can be found in OAC (N)Wetlands - a permit is needed to fill anywhere within a wetland boundaryStreams - A permit is needed for fill below the Ordinary High Water Mark (OHWM)OHWMNotice vegetation transition
8 Waterway Permit Activities Example discharges of fill material into waters of the US or isolated wetlands that would result in waterway permits being required.CofferdamsCulvertsPiersRock Channel ProtectionTemporary Constr. Access FillWetland Fill
9 Relevant Environmental Laws, Decisions and Agreements Clean Water ActSection 404 PermitRequired for the discharge of fill or dredged material in waters of the U.S.Authorized by USACE through:Nationwide Permit (NWP) = Minor Impacts/General PermitIndividual Permit (IP) = Major Impacts/Project SpecificRegional General Permit (RGP) = ODOT specialized permitSection 401 Water Quality CertificationsNeeded with any 404 permitCertified by Ohio EPA401 WQCs are pre-certified for NWP & RGPIndividual 401 WQCsAlways needed with a 404 IPSometimes needed with a NWP / RGP
10 Relevant Environmental Laws, Decisions and Agreements The Clean Water Act permitting process and the coordinating agency (simplified flowchart)
11 Relevant Environmental Laws, Decisions and Agreements Rapanos DecisionUS Supreme Court CaseRedefined Federal JurisdictionNew termsImpacts to Jurisdictional Ditches matterSee the Waterway Permits Manual and/or the Aquatic Resources Presentation for further informationAbutting or AdjacentRelatively or Non-Relatively PermanentTraditionally Navigable WatersJurisdictional DitchesSignificant Nexus
12 Relevant Environmental Laws, Decisions and Agreements SWANCC Decision2001 US Supreme Court decision - Solid Waste Agency of Northern Cook County (SWANCC):proposed a landfill in an abandoned sand and gravel pit with permanent and seasonal ponds that did not support wetland vegetation (only met 2 of 3 wetland criteria)USACE said the ponds were jurisdictional because of their habitat for migratory birds resulted in a connection to interstate commerce (the “migratory bird rule”)Court decision prohibited USACE to regulateisolated wetlands using the migratory bird rule
13 Ohio Isolated Wetland Law Relevant Environmental Laws, Decisions and AgreementsOhio Isolated Wetland LawMany states, including Ohio, did not have regulations specifically for isolated wetlandsEnacted the Ohio Isolated Wetland Law: July 2001 ORC Chapter –Provides OEPA regulatory authority over isolated wetlandsCreated two permit types: general and individual with 3 levels of review
14 Ohio Isolated Wetland Law Relevant Environmental Laws, Decisions and AgreementsOhio Isolated Wetland LawIsolated wetlands defined in OAC (T) as:Wetlands with no surface water connection to a surface water of the State;Are outside of, and not contiguous to, any 100-year floodplain (as defined in OAC (P)); andHave no contiguous hydric soil between the wetland and any surface water of the State.
15 Relevant Environmental Laws, Decisions and Agreements
16 Rivers and Harbors Act 1899 – Section 9 Relevant Environmental Laws, Decisions and AgreementsRivers and Harbors Act 1899 – Section 9Section 9 Bridge Permit for construction of bridges or causeways performed in, over, or under navigable waters of the US:Regulated by US Coast GuardConcerned with horizontal and verticalclearances for commercial navigation401 WQC is a prerequisiteA list of Section 9 regulated waters isproduced by USCG and includedthe waterway permits manualFollowing the Section 9 approval, a formal demolition plan is required to be submitted (by the contractor) for review and approval, if applicable.
17 Rivers and Harbors Act 1899 – Section 10 Relevant Environmental Laws, Decisions and AgreementsRivers and Harbors Act 1899 – Section 10Required for all work performed in “navigable waters of the US” (traditional or recreational navigation).USACE coordinates Section 10 projects with USCG.A list of Section 10 regulated waters is included in the Waterway Permits Manual.404 PCN may be required for fill below OHWM.Notice to Navigation (NTN)required for activities withinnavigation limits.
18 ORTO only reviews ODOT Let & ODOT Let LPA projects. Permitting AgenciesUS ARMY CORPS OF ENGINEERS (USACE)Regulatory District for ODOT:Huntington District:Ohio Regulatory Transportation Office (ORTO)DSCC Bldg. 10 /Section 103990 East Broad St.Columbus, OH 43218ORTO only reviews ODOT Let & ODOT Let LPA projects.
19 US ARMY CORPS OF ENGINEERS (USACE) Permitting AgenciesUS ARMY CORPS OF ENGINEERS (USACE)Issues 404 IPS, NWP, and RGPAdministers Section 10 permittingprogramReviews and approve mitigationVegetation transitionWetland BoundaryOHWMUSACE jurisdiction occurs at or below the Ordinary High Water Mark (OHWM) or at the wetland/upland boundary
20 US ARMY CORPS OF ENGINEERS (USACE) Permitting AgenciesUS ARMY CORPS OF ENGINEERS (USACE)Performs jurisdictional determinations (JDs) for potential waters of the US, including whether a wetland is isolated or non-isolatedJurisdictional Determination(USACE)Isolated WetlandWaters of the USOhio Isolated Wetlands LawClean Water ActIsolated Wetlands Permit(OEPA)404/401 Permit(USACE, OEPA)
21 Permitting Agencies Ohio Environmental Protection Agency (OEPA) OEPA’s Division of Surface Water – 401 Unit administers the Section 401 Water Quality Certification programReviews and approves 401 WQC applicationsProvides conditions on the NWP & RGPReviews & Approves mitigationThe 401 Unit also administers the Isolated Wetland ProgramReviews and approves isolated wetland permit applications
22 Permitting Agencies US Coast Guard (USCG) Administers the Section 9 Bridge Permit programOhio has two USCG DistrictsOhio River watershed : 8th Districtheadquartered in St. Louis, MissouriLake Erie watershed:9th District headquarteredin Cleveland, Ohio.
23 ODOT’s Permit Determination (PD) Process A Permit Determination (PD) is the process by which the appropriate level of waterway permitting is determined by the OES-WPU.ODOT District staff determine if a PD is necessary (Is there work in waters of the US, isolated wetlands, or involving a Section 9 or 10 water?).If necessary, a PD package is submitted by the District to OES-WPU.OES-WPU reviews the project in light of all waterway permit conditions and the respective project’s impacts to aquatic resources.
24 ODOT’s Permit Determination (PD) Process Permit Prerequisites: submitted with PD Package:ESR agency coordination completedJurisdictional Determination (if applicable)Project Specific Requirements:Mitigation Opportunities InventorySection 7 Determination for National Wild and Scenic Rivers ActCoastal Consistency CertificationFloodplain CoordinationCultural ResourcesODNR Scenic River Approval
25 ODOT’s Permit Determination (PD) Process Permit Determination Package includes:Standard Form (PDIOC request)Project DescriptionRelevant mapping (location map and topo)Project Plans (title sheet, notes, plan & profile, cross sections, culvert and bridge details and site plans with OHWM)Jurisdictional Determination (if applicable)ESR (or link to CE online)Temporary Fill Checklist, if temporary fill is neededAgency Coordination (or link to CE online)PD submittal usually completed by the District
26 ODOT’s Permit Determination (PD) Process OES-WPU reviews the project and determines the level of permitting neededThe OES-WPU typically allows three-four weeks to review a project for a PD.Four (4) Outcomes:No permit necessaryMore information is needed before a permit determination can be made (Ex. a JD may be needed )Project is covered under a general permit with no agency notification required (Ex. no PCN)A permit with agency coordination is required (Ex. permit application, PCN…)
27 Types of Waterway Permits USACE Section 404 Nationwide Permit (NWP)USACE Section 404 Regional General Permit (RGP) – ODOT use onlyUSACE Section 404 Individual Permit (404 IP)OEPA Section 401 Water Quality Certification (WQC)OEPA Isolated Wetland PermitUSCG Section 9 Bridge PermitUSACE Section 10 PermitSection 10 Notice to NavigationA project may require more than one waterway permit
28 Average Processing Timeframes for Waterway Permits PERMITTING TIME FRAMES*Permit TypeEstimated Processing TimeReviewing AgencyNWP & RGP30 daysOES WPUNWP/RGP w/ PCN60 daysUSACE404/401 PermitNWP/RGPw/ 401 WQC6 – 8 MonthsUSACE, OEPA404 IP/401 WQCMonthsUSACE, OEPAIsolated WetlandPermitLevel 1 (PAN) = 30 daysOEPALevel 2 (PAN) = 90 daysLevel 3 (401 WQC) = MonthsIf ApplicableSection 9 Permit9 – 12 MonthsUSCGSection 10 Permit60 daysUSACE*These time frames are estimates based on average agency review times and theyassume a complete application was submitted to the agency. In addition, OES has amaximum processing time of three weeks.
29 Nationwide Permits (NWP) Section 404 activity-based permits:Streamlined processMinimal adverse effect on aquatic resources50* different NWPs (next slide)NWPs can be combined (by OES or by USACE) but cannot be used to increase threshold limitations.
30 Common NWPs utilized by ODOT NWP #3 - MaintenanceNWP #6 - Survey ActivitiesNWP #12 – Utility LinesNWP #13 - Bank StabilizationNWP #14 - Linear Transportation CrossingsNWP #15 - USCG Approved BridgesNWP #18 - Minor DischargesNWP #23 - Approved Categorical ExclusionsNWP #25 - Structural DischargesNWP #33 - Temporary Construction Access and Dewatering
31 Nationwide Permits (NWP) General coverage under the NWP can be determined by OES-WPU if the project meets all of the:general conditionsregional conditionsOhio EPA pre-certification conditions of the Nationwide PermitsA PCN is required if specified in the NWP conditionsPCN = Pre-Construction Notification, agency notification and authorizationNWP #3: temporary fill in a perennial stream requires a PCN.
32 Pre-Construction Notification The PCN is the standard USACE Engineering form (Form-4345) which outlines various project related information.Supplemental information is required:ECO coordination to and from the agencies.Plan sheets (drawings, mapping, photographs.SHPO clearance/documentation.The USACE may require mitigation for impacts to jurisdictional stream and/or wetlands (>0.1 acre of impacts)Refer to the USACE Mitigation Guidelines Checklist for Ohio
33 Nationwide Permit – with Individual 401 Projects that meet the NWP conditions but NOT the Ohio EPA pre-certification of the NWP require:Section 401 Water Quality Certification (WQC) from OEPAIn other words, Individual 401Example: NWP #14 – Linear Transportation, the USACE allows up to 0.5 acre (regardless of length) of permanent impact to waters of the US. OEPA 401 conditions only allow impacts to 300’ of intermittent or perennial stream. So a project with 0.40 acre of permanent fill below the OHWM with a stream length greater that 300 feet will result in a PCN with individual 401.
34 Regional General Permit (RGP) Strictly for ODOT-let, ODOT-let LPA, or State Forces projectRegional General Permit (RGP) combines NWP #14, #3 and #33 into Sections A, B and C.Authorizes activities in waters of the U.S. associated with linear transportation projects and the maintenance/replacement of existing transportation infrastructure.Sections can be used independently or collectively but cannot be used to increase impact thresholds.May or may not require PCN
35 404 Individual Permit (IP) If one or more NWP/RGP thresholds are exceeded, then a Section 404 Individual Permit from the USACE may be required.404 IP authorize projects with significant impacts to aquatic resources as defined by USACE.If a 404 IP is required, the project will also require a 401 Water Quality Certification from OEPA.Common activities requiring 404 IP:Permanent impacts to streams/wetlands >0.50 acreMajor stream relocation projectsImpacts that the USACE deems significant in relation to a specific activity.
36 404 Individual Permit (IP) 404 IP is the standard PCN application with additional information on aquatic resources and proposed impacts.A 404(B)(1) requires alternatives analysis and analysis of wetland/stream avoidance, minimization, and mitigation measures.The 401 WQC anti-degradation alternatives analysis typically satisfies 404(B)(1) alternatives analysis.Joint 401/404 Permit ApplicationSee Waterway Permits Manual for guidance on completing applications
37 404 Individual Permit (IP) USACE 404 Application Review and Authorization:Formal USACE review begins with a complete permit application.30 day Public Notice (PN) is required. A public hearing may be required if there are substantial comments and/or on controversial projects.All comments from PN taken into consideration by USACE. ODOT works with USACE on addressing any comments and/or resolving issues related to the PN.Assuming that all comments are addressed and mitigation plan is approved, USACE will draft a permit decision (authorization).
38 404 Individual Permit (IP) 404 IP not authorized until the 401 WQC is issued by the OEPA.Invalidated 404 permit sent to ODOT for signature. USACE District Commander then signs the final 404 IP, validating the permits and authorizing the project.The final 404 permit contains all terms and conditions. It also includes any mitigation and monitoring requirements, including performance criteria for mitigation.Final Mitigation Plan (in accordance with the USACE’s Mitigation Guidelines Checklist for the State of Ohio) must be approved prior to impacts to waters of the US occurring.
39 OEPA 401 Water Quality Certification OEPA 401 Water Quality Certification (WQC) is required when a specific project activity does not meet OEPA’s pre-certification of the USACE Nationwide Permit:Examples:>.10 acre of category 3 wetland impact>0.5 acre of category 1 or 2 wetland impactAny impacts to exceptional warmwater habitat, coldwater habitat, seasonal salmonid (excludes most maintenance activities)The OEPA has a standard form for a 401 WQC (aka Individual 401)
40 401 Water Quality Certification (WQC) The 401 WQC application is divided into 11 sections and requires;project informationproject descriptionproject purposeinformation on other permitsas well as an alternatives discussion to meet the requirements of OEPA’s Anti-Degradation Rule.OEPA Alternatives include:Preferred Alternative (PA)Minimal Degradation Alternative (MDA)Non-Degradation Alternative (NDA)The Anti-Degradation Rule requires a comprehensive alternatives analysis be completed and approved prior to any project being certified which will result in a “lowering of water quality”.
41 401 Water Quality Certification (WQC) Preferred Alternative (PA)The PA is typically the project you are submitting for approval, but not always.401 alternatives are within the NEPA preferred corridor, but allow for shifts in alignment for avoidance and minimization of waters.Typically, the PA is the most practical from an engineering/cost standpoint, but must exhibit a higher degree of impacts to aquatic resources.
42 401 Water Quality Certification (WQC) Minimal Degradation Alternative (MDA)Less environmentally damaging version of the project resulting in less impacts to aquatic resources.MDA should avoid or minimize impacts to aquatic resources.Where measures have been taken during project development to avoid/minimize impacts to aquatic resource (or resources), ODOT may implement (and seek authorization for) the NEPA preferred alternative as the 401 MDA.Mitigation alone (in combination with the PA) cannot be used as the MDA.
43 401 Water Quality Certification (WQC) Non-Degradation Alternative (NDA)Version of the project that would result in no impacts to aquatic resources.ODOT projects utilize the “no build” for the NDA based upon the purpose and need for the project as established during the NEPA process.
44 401 Water Quality Certification (WQC) Antidegradation analysis:Typically not the same alternatives as evaluated during the NEPA process.Focuses on avoiding/minimizing impacts to aquatic resources. While the NEPA alternatives analysis focuses on avoiding and/or minimizing impacts to all resources (ecological, cultural resources, ESA sites, 4F resources, etc.),The alternatives evaluated in the 401 WQC tend to be more design driven (retaining walls, pier placement, etc.), rather than evaluating locational alternatives.
45 401 Water Quality Certification (WQC) OEPA 401 Application Review and Authorization:Formal project review begins with a complete 401 application.30 day Public Notice (PN) required. Public Hearing may be required if:Requested by applicantPublic CommentsImpacts to Category 3 WetlandsODOT works with OEPA to address commentsAssuming all comments addresses and mitigation approved OEPA issues a 401 WQC.Terms and conditions are outlined in the 401 WQC. The final 401 WQC includes mitigation and monitoring requirements, as well as performance standards.
46 OEPA Isolated Wetland Permits Two types of permits, three levels of review:General Isolated Wetland Permit – Level 1 reviewMinor impacts, lowest level of reviewIndividual Isolated Wetland Permit – Levels 2 and Level 3 reviewsThe USACE Jurisdictional Determination is required before the OEPA can complete their review of the isolated wetland permit application.
47 OEPA Isolated Wetland Permits Level 1 Review:Applies to fills in Category 1 and 2 wetlands, ½ acre or less.Requires pre-activity notification (PAN), including (2 page application form) includes:project descriptionwetland delineation with wetland categorymitigation planIndicate whether high quality waters are to be avoided.OEPA response within 30 days (automatic approval if no response).Valid for 2 years.Mitigation: on-site, at bank (within USACE district), or offsite.
48 OEPA Isolated Wetland Permits Level 2 Review:Applies to fills in Category 1 isolated wetlands > ½ acre, or fills in Category 2 isolated wetlands between ½ and 3 acres.Requires general isolated wetland permit application (PAN)Additional sheet of questions.Discussion of on-site alternatives with high quality water avoidance.mitigation plan is also required.OEPA response time: maximum 90 days (after acceptance of permit application) - cannot automatically proceed.Valid for 2 years.Mitigation: on-site, off-site within watershed, at bank (within USACE district).
49 OEPA Isolated Wetland Permits Level 3 Review:Applies to fill in category 2 isolated wetlands > 3 acres or any fill in category 3 isolated wetlands.Must provide Level1 and 2 Isolated Wetland Permit documentation.In addition, Level 3 review will require an anti-degradation alternatives analysis (utilizing the 401 WQC application).OEPA response time: maximum 180 days (after acceptance of application) - cannot automatically proceed.Valid for 5 years.Mitigation: on-site, off-site withinwatershed, at bank (within USACEdistrict).
50 Special Provisions Package (SPP) The method OES-WPU uses to include the waterway permit(s) conditions as part of the construction contract. SPP may contain the following:A standard project-specific title sheetStandard and project specific waterway permit conditionsResource tables, drawings/plan sheets from the permit application (if applicable)
51 Special Provisions Package (SPP) The SPP is tailored to each individual project to ensure compliance. OES will create and insert project-specific conditions when necessary.The SPP is returned to the district office. The district office is then responsible for attaching the SPP to the construction plans prior to the plan file submittal to ODOT-Central Office-Office of Estimating.Special Provisions ensure that the contractor is aware of all Waterway Permit Conditions prior to bidding on a construction contract, thus they must adhere to all of the conditions as they are part of the contract.The actual 401 WQC, 404 permit, Isolated Wetland Permit (or others) are NOT to be attached to the SPP or plans.
52 Items to RememberAny communication to resource agencies shall occur through OES-WPU, not by consultant, contractor, or ODOT district office (unless directed by OES-WPU).For ODOT let projects and for ODOT let LPA projects, ODOT is the applicant (Director of ODOT) and is responsible for obtaining or modifying the appropriate waterway permits.For local let LPA projects, the local project sponsor is responsible (as the applicant) for obtaining the appropriate waterway permits.