Proposed Rules - Withdrawn February 1, 2012

On February 1, 2012, Ohio EPA withdrew the proposed Section 401 Water Quality Certification rules package from JCARR.

• News release

Section 401 Water Quality Certifications (OAC 3745-32 and 45)

The proposed rules, public notice, fact sheet and letter to interested parties are available below under "Available documents".

Background

The federal Clean Water Act requires anyone discharging dredged or fill material into Ohio waters to obtain a water quality certification from Ohio EPA pursuant to Section 401 and a permit from the U.S. Army Corps of Engineers pursuant to Section 404. Ohio EPA’s review is to ensure that the projects comply with Ohio’s water quality standards.

The current Section 401 water quality certification rules, as they apply to streams, apply only in situations involving a pending federal permit, usually a Section 404 permit. Section 404 permits are required only for waterways that can be defined as waters of the United States. The definition of waters of the United States under the Clean Water Act no longer includes isolated wetlands, streams and lakes. However, these are considered waters of the state under Ohio Law (ORC section 6111.01). The Ohio General Assembly addressed this conflict for isolated wetlands in 2001 by establishing a state isolated wetland permitting program (ORC Chapter 6111.). This rule package addresses this conflict for isolated streams and lakes by establishing a state water quality permit.

Other draft revisions in Chapter 3745-32 combine and enhance procedural rules that help address some historical procedural ambiguities within the program. Rule 3745-45-02 is being rescinded because certification fees are now incorporated into state law (ORC section 3745.114).

For additional information about Ohio EPA's Section 401 water quality certification programs, visit the Ohio EPA Section 401 Water Quality Certification Program web page and Environmental Mitigation and Special Permitting Section web page.

Available documents

• Public notice [PDF 49K]
• Letter to interested parties [PDF 72K]
• Fact sheet [PDF 112K]
• Response to comments on draft section 401 water quality certification rules [PDF 1,070K]
• Summary of comments on draft stream mitigation rule [PDF 1,249K]
• Draft Common Sense Initiative Business Regulation Impact Assessment form [PDF 348K] - In preparation of implementation of Senate Bill 2, Ohio EPA has prepared a draft Business Regulation Impact Assessment form for review and comment.  The deadline for comments on the draft form is 5:00 p.m. on February 1, 2012. 
• Revised version of the Primary Headwater Habitat Field Evaluation Manual

Proposed Rules
For a new rule, all text is underlined. For a rescinded rule, text is left unchanged and “To Be Rescinded” is at the top of the first page of the rule.

Download all the proposed rules to be rescinded here [PDF 32K] or download individual rules below.
Download all the proposed new rules here [PDF 202K] or download individual rules below.

See all currently effective rules in Chapters 3745-32 and 3745-45 here.
See draft versions of the rules here.

For additional information or to submit comments

Please submit any comments you have on the proposed rules in one of the following manners.

If you would like further information about this rulemaking, please contact Ric Queen at ric.queen@epa.state.oh.us or (614) 644-2872.

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