WATERWAY PERMITS

1. WATERWAY PERMITS NEPA TRAINING 2014

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 & Form • Prepare & 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 Manual • The Manual: • provide guidelines for preparing waterway permit applications • Ensures consistency and completeness • Provides templates, examples, and links • Is a link between ODOT’S Project Development Process and our waterway permitting process • To view the Waterway Permits Manual: http://www.dot.state.oh.us/Divisions/Planning/Environment/Ecological_Resources_Permits/WATERWAY_PERMITS/Documents/WaterwayPermitsManual110209.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 land • 2) changes the bottom elevation of a waterbody • All 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 3745-32-01 (N) • Wetlands - a permit is needed to fill anywhere within a wetland boundary • Streams - A permit is needed for fill below the Ordinary High Water Mark (OHWM) OHWM Notice 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. Cofferdams Culverts Piers Rock Channel Protection Temporary Constr. Access Fill Wetland Fill

9. Relevant Environmental Laws, Decisions and Agreements Clean Water Act • Section 404 Permit • Required for the discharge of fill or dredged material in waters of the U.S. • Authorized by USACE through: • Nationwide Permit (NWP) = Minor Impacts/General Permit • Individual Permit (IP) = Major Impacts/Project Specific • Regional General Permit (RGP) = ODOT specialized permit • Section 401 Water Quality Certifications • Needed with any 404 permit • Certified by Ohio EPA • 401 WQCs are pre-certified for NWP & RGP • Individual 401 WQCs • Always needed with a 404 IP • Sometimes 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 Decision • US Supreme Court Case • Redefined Federal Jurisdiction • New terms • Impacts to Jurisdictional Ditches matter • See the Waterway Permits Manual and/or the Aquatic Resources Presentation for further information • Abutting or Adjacent • Relatively or Non-Relatively Permanent • Traditionally Navigable Waters • Jurisdictional Ditches • Significant Nexus

12. Relevant Environmental Laws, Decisions and Agreements SWANCC Decision • 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”) • 2001 US Supreme Court decision - Solid Waste Agency of Northern Cook County (SWANCC): • Court decision prohibited USACE to regulate • isolated wetlands using the migratory bird rule

13. Relevant Environmental Laws, Decisions and Agreements Ohio Isolated Wetland Law • Many states, including Ohio, did not have regulations specifically for isolated wetlands • Enacted the Ohio Isolated Wetland Law: July 2001 ORC Chapter 6111.21–6111.29 • Provides OEPA regulatory authority over isolated wetlands • Created two permit types: general and individual with 3 levels of review

14. Relevant Environmental Laws, Decisions and Agreements Ohio Isolated Wetland Law • Isolated wetlands defined in OAC 3745-1-50(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 3745-1-50(P)); and • Have no contiguous hydric soil between the wetland and any surface water of the State.

15. Relevant Environmental Laws, Decisions and Agreements

16. Relevant Environmental Laws, Decisions and Agreements Rivers and Harbors Act 1899 – Section 9 • Section 9 Bridge Permit for construction of bridges or causeways performed in, over, or undernavigable waters of the US: • Regulated by US Coast Guard • Concerned with horizontal and vertical clearances for commercial navigation • 401 WQC is a prerequisite • A list of Section 9 regulated waters is produced by USCG and included the waterway permits manual • Following the Section 9 approval, a formal demolition plan is required to be submitted (by the contractor) for review and approval, if applicable.

17. Relevant Environmental Laws, Decisions and Agreements Rivers and Harbors Act 1899 – Section 10 • Required 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 within navigation limits.

18. Permitting Agencies US ARMY CORPS OF ENGINEERS (USACE) Regulatory District for ODOT: Huntington District: Ohio Regulatory Transportation Office (ORTO) DSCC Bldg. 10 /Section 10 3990 East Broad St. Columbus, OH 43218 ORTO only reviews ODOT Let & ODOT Let LPA projects.

19. Permitting Agencies US ARMY CORPS OF ENGINEERS (USACE) Vegetation transition • Issues 404 IPS, NWP, and RGP • Administers Section 10 permitting program • Reviews and approve mitigation Wetland Boundary OHWM • USACE jurisdiction occurs at or below the Ordinary High Water Mark (OHWM) or at the wetland/upland boundary

20. Jurisdictional Determination (USACE) Isolated Wetland Waters of the US Ohio Isolated Wetlands Law Clean Water Act Isolated Wetlands Permit (OEPA) 404/401 Permit (USACE, OEPA) Permitting Agencies US ARMY CORPS OF ENGINEERS (USACE) • Performs jurisdictional determinations (JDs) for potential waters of the US, including whether a wetland is isolated or non-isolated

21. Permitting Agencies Ohio Environmental Protection Agency (OEPA) • OEPA’s Division of Surface Water – 401 Unit administers the Section 401 Water Quality Certification program • Reviews and approves 401 WQC applications • Provides conditions on the NWP & RGP • Reviews & Approves mitigation • The 401 Unit also administers the Isolated Wetland Program • Reviews and approves isolated wetland permit applications

22. Permitting Agencies US Coast Guard (USCG) • Administers the Section 9 Bridge Permit program • Ohio has two USCG Districts • Ohio River watershed : 8th District headquartered in St. Louis, Missouri • Lake Erie watershed: 9th District headquartered in 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 completed • Jurisdictional Determination (if applicable) • Project Specific Requirements: • Mitigation Opportunities Inventory • Section 7 Determination for National Wild and Scenic Rivers Act • Coastal Consistency Certification • Floodplain Coordination • Cultural Resources • ODNR Scenic River Approval

25. ODOT’s Permit Determination (PD) Process Permit Determination Package includes: • Standard Form (PDIOC request) • Project Description • Relevant 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 needed • Agency Coordination (or link to CE online) • PD submittal usually completed by the District

26. OES-WPU reviews the project and determines the level of permitting needed • The OES-WPU typically allows three-four weeks to review a project for a PD. ODOT’s Permit Determination (PD) Process Four (4) Outcomes: • No permit necessary • More 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 only • USACE Section 404 Individual Permit (404 IP) • OEPA Section 401 Water Quality Certification (WQC) • OEPA Isolated Wetland Permit • USCG Section 9 Bridge Permit • USACE Section 10 Permit • Section 10 Notice to Navigation A project may require more than one waterway permit

28. Average Processing Timeframes for Waterway Permits PERMITTING TIME FRAMES* Permit Type Estimated Processing Time Reviewing Agency 30 days OES WPU NWP & RGP NWP/RGP w/ PCN 60 days USACE 404/401 Permit NWP/RGPw/ 401 WQC 6 – 8 Months USACE, OEPA 404 IP/401 WQC 8 - 12 Months USACE, OEPA Isolated Wetland Permit Level 1 (PAN) = 30 days OEPA Level 2 (PAN) = 90 days Level 3 (401 WQC) = 6 - 12 Months If Applicable Section 9 Permit 9 – 12 Months USCG Section 10 Permit 60 days USACE *These time frames are estimates based on average agency review times and they assume a complete application was submitted to the agency. In addition, OES has a maximum processing time of three weeks.

29. Nationwide Permits (NWP) • Section 404 activity-based permits: • Streamlined process • Minimal adverse effect on aquatic resources • 50* 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 - Maintenance • NWP #6 - Survey Activities • NWP #12 – Utility Lines • NWP #13 - Bank Stabilization • NWP #14 - Linear Transportation Crossings • NWP #15 - USCG Approved Bridges • NWP #18 - Minor Discharges • NWP #23 - Approved Categorical Exclusions • NWP #25 - Structural Discharges • NWP #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 conditions • regional conditions • Ohio EPA pre-certification conditions of the Nationwide Permits • A PCN is required if specified in the NWP conditions • PCN = Pre-Construction Notification, agency notification and authorization • NWP #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 OEPA • In other words, Individual 401 Example: 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 project • Regional General Permit (RGP) combines NWP #14and #3 into Sections A and B. • 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 acre • Major stream relocation projects • Impacts 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 Application • See Waterway Permits Manual for guidance on completing applications

37. USACE 404 Application Review and Authorization: 404 Individual Permit (IP) • 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 impact • Any impacts to exceptional warmwater habitat, coldwater habitat, seasonal salmonid (excludes most maintenance activities) • The OEPA has a standard application form to apply for an individual 401 WQC (new format as of June 2014).

40. 401 Water Quality Certification (WQC) • The 401 WQC application is divided into 5 sections and requires; • project information, description, and purpose • all submitted documentation • information on other permits • mitigation information • as 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. Minimal Degradation Alternative (MDA) 401 Water Quality Certification (WQC) • 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. Antidegradation analysis: 401 Water Quality Certification (WQC) • 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. OEPA 401 Application Review and Authorization: 401 Water Quality Certification (WQC) • Formal project review begins with a complete 401 application. • 30 day Public Notice (PN) required. Public Hearing may be required if: • Requested by applicant • Public Comments • Impacts to Category 3 Wetlands • ODOT works with OEPA to address comments • Assuming 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 review • Minor impacts, lowest level of review • Individual Isolated Wetland Permit – Levels 2 and Level 3 reviews • The USACE Jurisdictional Determination is required before the OEPA can complete their review of the isolated wetland permit application.

47. 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 description wetland delineation with wetland category mitigation plan Indicate 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. OEPA Isolated Wetland Permits

48. 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). OEPA Isolated Wetland Permits

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 within watershed, at bank (within USACE district).

50. The method OES-WPU uses to include the waterway permit(s) conditions as part of the construction contract. SPP may contain the following: Special Provisions Package (SPP) • A standard project-specific title sheet • Standard and project specific waterway permit conditions • Resource tables, drawings/plan sheets from the permit application (if applicable)