Current through all regulations passed and filed through December 16, 2024
[Comment: For dates of non-regulatory
government publications, publications of recognized organizations and
associations, federal rules and federal statutory provisions referenced in this
rule, see rules
3745-1-03 and
3745-1-50 of the Administrative
Code.]
(A)
This rule applies when establishing mitigation
requirements for stream impacts that are authorized under a section 401 water
quality certification in accordance with this chapter or other appropriate
authorization issued by the director.
[Comment: Compensatory mitigation
requirements for authorized impacts to wetlands are in rule
3745-1-54 of the Administrative
Code. Compensatory mitigation requirements for authorized impacts to ephemeral
streams are in sections
6111.311 to
6111.316 of the Revised
Code.]
(B)
Stream compensatory mitigation requirements.
(1)
The compensatory
mitigation type and location shall be provided in the following preferred
order:
(a)
At a
mitigation bank, approved in accordance with 33 C.F.R. Part 332.8, with a
service area including the same watershed as the location of the proposed
stream impacts that provides appropriate stream mitigation
credits.
(b)
Through an in-lieu-fee program, approved in accordance
with 33 C.F.R. Part 332.8, with a service area including the same watershed as
the location of the proposed stream impacts that provides appropriate stream
mitigation credits.
(c)
At a permittee-responsible compensatory mitigation site
located in accordance with 33 C.F.R. Part 332.3(b).
(2)
Deviations from
the preferred order established in paragraph (B)(1) of this rule require a
demonstration of all of the following:
(a)
Description of
the available credits for each approved mitigation bank or in-lieu fee program
with a service area including the same watershed as the location of the
proposed stream impacts.
(b)
Description of the costs associated with the proposed
compensatory mitigation and each preceding option outlined in paragraph (B)(1)
of this rule.
(c)
Discussion of how the proposed compensatory mitigation
will provide a greater ecological benefit than each preceding option outlined
in paragraph (B)(1) of this rule.
(3)
Compensatory
mitigation shall be in-kind unless there is a compelling ecological reason that
the compensatory mitigation should not be.
(4)
Compensatory
mitigation debit and credit amounts shall be calculated using the "Ohio Stream
Assessment Method" or alternative stream mitigation methods, upon approval of
the director, if the applicant demonstrates that the method provides an
equivalent or greater ecological lift as the Ohio stream assessment
method.
(5)
A drainage area scaling factor will apply for debit and
credit amounts calculated using the Ohio stream assessment method. The drainage
area scaling factor is effective in a range between 0.1-10 square miles for
streams with a valley slope of two per cent or less and 0.05-10 square miles
for streams with a valley slope greater than two per cent.
For streams with a valley slope of two
per cent or less, drainage areas below 0.1 square miles are capped at a scaling
factor of 0.42. For streams with a valley slope greater than two per cent,
drainage areas below 0.05 square miles are capped at a scaling factor of 0.32.
For all streams with drainage area above ten square miles, the scaling factor
is capped at 2.40.
Valley slope is determined by dividing
the amount of elevation change that occurs over the length of the
valley.
Final debits and credits are calculated
using the following equation, applying the scaling factor cap amounts described
above:
OSAM units x
(DA0.38) where:
OSAM units = calculated Ohio stream
assessment method debits or credits.
DA = drainage area.
(6)
A
temporal loss multiplier of 1.1 will apply for credits purchased through an
in-lieu fee program or when permittee responsible mitigation will not occur
concurrently with the approved impacts.
(7)
The applicant
shall demonstrate that the compensatory mitigation site will be protected long
term and that appropriate management measures are, or will be, in place to
restrict harmful activities that may jeopardize the compensatory
mitigation.
(8)
Performance standards. The director will require the
permittee to achieve performance standards to demonstrate the ecological
success of the mitigation project in accordance with the "Guidelines for Stream
Mitigation Banking and In-lieu Fee Programs in Ohio" or other performance
standards acceptable to the director as determined during the review of the
application.
(9)
Compensatory mitigation monitoring. The director will
require the permittee to conduct ecological monitoring of the compensatory
mitigation project and submit annual reports detailing the results of the
ecological monitoring to demonstrate progress towards compliance with the
performance standards.
(a)
The ecological monitoring at the compensatory
mitigation site may include, but is not limited to, collection of data on the
following:
(i)
Hydrologic, hydraulic, and geomorphological
characteristics.
(ii)
Vegetation communities.
(iv)
Biological communities.
(v)
Conducting an
assessment of the compensatory mitigation using an appropriate evaluation
method.
(b)
Ecological monitoring shall be conducted for a period
of at least five years following construction of the compensatory mitigation.
Projects with a forested component shall be monitored for at least ten years
following construction of the compensatory mitigation.
(i)
Upon written
request, the director may waive ecological monitoring requirements for the full
five or ten years if the applicant demonstrates to the satisfaction of the
director that the compensatory mitigation is meeting required goals or
targets.
(ii)
Upon written request, the director may grant a maximum
two year extension from the end of the five year or ten year monitoring period
to complete outstanding compensatory mitigation obligations. Submittal of
annual reports shall continue during the extension.
(iii)
For permittee
responsible mitigation, at the end of five years or ten years, or seven years
or twelve years if an extension is approved, compensatory mitigation that does
not meet required goals or targets shall be rectified through the purchase of
mitigation credits at a mitigation bank or through an in-lieu-fee program, when
available, in accordance with paragraph (B) of this rule. When mitigation
credits are not available, permittees may propose alternate compensatory
mitigation to fulfill the permit requirements for the director to consider. The
director may consider reductions in the required compensatory mitigation based
upon the ecological status of the original compensatory mitigation
project.