Section 6111.023. Proposed filling of wetland subject to level two review

(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) 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;

(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 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 in the following preferred order:

(a) Without the objection of the director and at the discretion of the applicant, 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;

(b) In-lieu fee mitigation.

The director, at the director's discretion, may allow an applicant to deviate from the preferred order established in division (E)(1) of this section. If the proposed filling of an isolated wetland will be mitigated by in-lieu fee mitigation, an applicant shall provide documentation to the director that demonstrates that the applicant evaluated the mitigation alternatives established in division (E)(1)(a) of this section.

(2) Mitigation for the proposed filling of a category 2 isolated wetland that is subject to level two review shall be conducted in the following preferred order:

(a)

Mitigation at a wetland mitigation bank with a service area that includes the location of the proposed filling of the isolated wetland.

(b) Mitigation at a wetland mitigation bank with a service area that is adjacent to the watershed in which the proposed filling of the isolated wetland is located, provided that the watershed is located within the same United States army corps of engineers district. If mitigation occurs in accordance with division (E)(2)(b) of this section, the applicable mitigation ratio calculated under section 6111.027 of the Revised Code shall be multiplied by one and one-half.

(c) In-lieu fee mitigation;

(d) Reasonably identifiable, available, and practicable mitigation within the same watershed

.

The director, at the director's discretion, may allow an applicant to deviate from the preferred order established in division (E)(2) of this section. If the proposed filling of an isolated wetland will be mitigated by in-lieu fee mitigation, an applicant shall provide documentation to the director that demonstrates that the applicant evaluated the mitigation alternatives established in divisions (E)(2)(a) and (b) of this section.

Amended by 129th General AssemblyFile No.115, SB 294, §1, eff. 9/5/2012.

Effective Date: 07-17-2001