Workshop B NPDES and W NPDES and Wetlands P tlands Permitting, - - PDF document

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Workshop B NPDES and W NPDES and Wetlands P tlands Permitting, - - PDF document

Workshop B NPDES and W NPDES and Wetlands P tlands Permitting, rmitting, Compliance & Enforcement Compliance & Enf rcement Practical & Cost-Ef Practical & Cost-Effectiv ective Tips f Tips for P r Permitting, the


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SLIDE 1

Workshop B

NPDES and W NPDES and Wetlands P tlands Permitting, rmitting, Compliance & Enf Compliance & Enforcement rcement

Practical & Cost-Ef Practical & Cost-Effectiv ective Tips f Tips for P r Permitting, the rmitting, the Sur Surface W ace Water T r Tracking, R acking, Repor porting & Electr ing & Electronic

  • nic

Applicatio Application Management Syst n Management System (STREAMS), em (STREAMS), and V and Valuab luable Complianc le Compliance P Point inters f for r Reducing Enf ducing Enforcement Risk ement Risk

Wednesda dnesday, July 2 July 24, 20 , 2019 19 2:45 p.m. t 2:45 p.m. to 4:15 p.m. 4:15 p.m.

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SLIDE 2

Biographical Information

William H. Haak, Founder, Haak Law LLC Cleveland, Ohio 216.772.3532 whh@haaklawllc.com William H. Haak is the Founder of Haak Law LLC (www.haaklawllc.com) – an environmental, health & safety legal and consulting firm based in Cleveland,

  • Ohio. He has nearly 20 years of experience in occupational safety law and

worker safety, and 25 years of experience in environmental law (including extensive experience in air pollution control law and multi-media environmental compliance). Mr. Haak practices nationally in the United States and consults globally on all matters related to the EHS field (plus security and crisis management).

  • Mr. Haak graduated from The University of Akron (Business Finance) and Case

Western Reserve University School of Law (J.D. with an emphasis on litigation and trial practice). Following law school, he worked as an Assistant Attorney General in the State of Ohio Attorney General’s Environmental Enforcement

  • Section. As counsel to Ohio EPA, Mr. Haak’s practice was focused primarily on

civil and administrative air pollution control cases. During his time with the Attorney General’s Office, Mr. Haak resolved civil environmental enforcement actions resulting in civil penalties totaling approximately $4 million. Prior to forming Haak Law LLC, Mr. Haak was Senior EH&S Counsel for General

  • Electric. He supported GE’s Appliances and Lighting Businesses, and was

engaged in complex air permitting issues for other GE businesses nationwide.

  • Mr. Haak has also been Associate General Counsel – EH&S for Hexion Specialty

Chemicals in Columbus, Ohio, and Senior Regulatory Law Counsel for Owens Corning in Toledo, Ohio. He served overseas in the former Soviet Union (Ukraine) as an Environmental Enforcement Specialist with the American Bar Association’s Central & East European Law Initiative ("ABA/CEELI"). Haak is a frequent lecturer to attorneys, engineers, and environmental professionals on topics concerning federal and state air pollution law. In addition, he has taught as an adjunct faculty member at the University of Central Florida in Orlando and Columbus State in Columbus, Ohio. From 2005 through 2018, Haak taught classes focusing on Air Pollution Law and Occupational Safety and Health Law at The University of Toledo College of Law as an Adjunct Professor.

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SLIDE 3

Biographical Information

Ashley Ward, P.E., NPDES Supervisor Ohio EPA, Division of Surface Water 50 West Town Street, Suite 700 PO Box 1049 Columbus, OH 43216-1049 (614) 644-4852 ashley.ward@epa.ohio.gov Ashley Ward, P.E., NPDES Supervisor, OEPA, DSW-CO Ashley has two Bachelor of Science degrees from The Ohio State University; one in Environmental Science, water specialization and

  • ne

in Chemical

  • Engineering. Ashley has worked for Surface Water for over seven years. Prior

to her current position as NPDES Supervisor, Ashley worked for the Division of Surface Water Chief in several different programs including enforcement, rules, NPDES and pretreatment. Before working for Ohio EPA, Ashley worked as a Microbiologist in the Research and Development Department of Lexmark. Joni Lung, Ohio EPA, Division of Surface Water 50 W Town St, Suite 700 PO Box 1049 Columbus, OH 43216-1049 614.644.2152 FAX: 614.644-2745 joni.lung@epa.ohio.gov Joni Lung has been in the Division of Surface Water, 401 and Isolated Wetland Permit Program since 2012, and as an Environmental Specialist 3, she is the lead worker for the program. Her responsibilities include program development, rule and policy development, and special projects such as the general certification for the Nationwide Permits. Before becoming lead worker, Joni was the 401 coordinator for ODOT projects

  • statewide. Prior to working for Ohio EPA, Joni spent three years with the

Columbus and Franklin County Metro Parks. Joni has a Bachelor of Science in Natural Resources from the Ohio State University and a Master of Science in Ecology from the Ohio State University.

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SLIDE 4

Managing Water Non-Compliance Responding to Non-Compliance and Reducing Enforcement Risk

Session B

July 24, 2019

William H. Haak

Haak Law LLC

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 5

Introduction

  • How does non-compliance get identified?
  • First steps matter...
  • Conducting a “ root cause” investigation
  • Identifying corrective actions
  • How and when to approach regulators
  • Keys to avoiding a Volkswagen scandal...

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 6

Identifying Non-Compliance

  • Through internal systems
  • Monitoring data shows issue
  • Employee raises issue
  • Audit uncovers issue
  • Through an incident
  • Release and/ or catastrophic accident (e.g., fish kill)
  • Equipment malfunction or failure
  • Citizen complaint
  • Planned or unplanned regulatory inspection

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 7

You’re “Non-Compliant”...Now What?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 8

Critical First Steps

  • Avoid the urge to j ump to conclusions
  • Investigate fully before designating anything a “ fact”
  • Try to multi-source your facts
  • Cast your net WIDE to identify all “ root causes”
  • Consider engaging an attorney before you even start
  • UNLES

S you have an immediate reporting obligation, do not contact regulators until you know the facts

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 9

Simple “Five Why” Root Cause Analysis

  • Problem: Your car won’t start...
  • 1. Why?

The battery is dead

  • 2. Why?

The alternator isn’ t working

  • 3. Why?

The alternator belt is broken

  • 4. Why?

The belt was beyond its useful life

  • 5. Why?

I haven’ t done regular, routine maintenance

  • Causes:

Direct: Dead battery Surface: Broken alternator belt Root: Failure to conduct routine maintenance

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 10

Next Steps

  • Just returning to compliance isn’ t a “ corrective

action”

  • Thoughtfully identify real corrective actions
  • Focus on root cause(s)
  • Aim to ensure you can prevent possible recurrence
  • Make tough decisions (especially with respect to personnel)
  • Track and timely complete your corrective actions
  • Approaching regulators
  • Determine the nature of your obligation to self-report
  • Consider audit policies and penalty immunity if you qualify
  • Presenting regulators with a holistic solution can help

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 11

Avoiding a Volkswagen Scandal

  • Volkswagen Diesel Emissions S

candal background

  • VW adopts ” Clean Diesel” marketing strategy in 2006
  • VW has no idea how to make a “ Clean Diesel” ...
  • VW engineers develop an emissions testing defeat device
  • Multiple VW officials become aware of defeat device
  • Nobody takes decisive action to investigate or stop...
  • A cascade of lies...
  • In 2014, West Virginia University finds emissions anomalies
  • VW cars were compliant in labs, but not during road tests
  • VW repeatedly misled the California Air Resources Board
  • Promised software “ patches” would fix problems
  • A whistleblower ultimately disclosed the defeat devices

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 12

Volkswagen Scandal Lessons

  • Key takeaways:
  • Have an internal ” watchdog” function (even if it’s just you)
  • Conduct a thorough investigation
  • Get full and complete access to everyone involved
  • Identify all contributing and root causes
  • Develop corrective actions – including discipline as needed
  • Make your compliance package “ turn-key”
  • Timely and carefully approach regulators with the FACTS
  • NEVER mislead regulators
  • S

ay you “ don’ t know” instead of making a false statement...

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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SLIDE 13

Questions?

HAAK LAW LLC

Environmental, Health & Safety Legal and Consulting Services William H. Haak Tel: 216.772.3532 whh@haaklawllc.com

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NPDES Updates

Ashley Ward, P.E. NPDES Program Supervisor

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Presentation Outline

  • Program overview
  • CO Personnel
  • Rulemakings
  • Permitting tips
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Program Overview

  • What is NPDES?
  • Why was it created?
  • Types of permits
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SLIDE 17

Program Overview

  • Receipt of application
  • WLA
  • Draft Permit/FS
  • Review
  • Preview period
  • Public notice
  • RTC
  • Finalize
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SLIDE 18

Questions?

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SLIDE 19

Personnel

  • DSW has a new Assistant Chief – Archie

Lunsey.

  • Structure of NPDES, PTI sections.
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Questions?

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SLIDE 21

Rule Updates

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SLIDE 22

Rule Updates

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SLIDE 23

Rule Updates

  • Biocriteria Narrative
  • Human Health
  • Aquatic life
  • Variances
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Triennial Review ‐ Selenium

  • EPA published final

chronic aquatic life criterion July 13, 2016.

  • Bioaccumulates
  • Can cause reproductive

impairment, adversely impact juvenile growth and cause mortality.

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Triennial Review ‐ Selenium

Water Column Criteria (µg/L)

Old New Streams 5 3.1 Lakes 5 1.5

Fish Tissue Criteria (mg/kg)

  • Egg/ovary: 15.1
  • Whole body: 8.5
  • Muscle: 11.3
  • Egg/ovary overrides other

criteria.

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Triennial Review ‐ Ammonia

  • What is it?
  • Where does it come

from?

  • How does it impact

aquatic life?

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SLIDE 27

Triennial Review ‐ Ammonia

  • EPA published revised

aquatic life criteria for ammonia on August 22, 2013.

  • New toxicity data

reflecting freshwater mussel and snail sensitivity.

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SLIDE 28

New Federal Ammonia WQS

  • What’s this mean to you?

– Should Ohio adopt these criteria, WWTPs that have a water quality based ammonia limit may see their limit decrease, possibly in a significant way. – WWTPs with BADCT limits for ammonia may see these limits reduced as well.

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SLIDE 29

New Federal Ammonia WQS

  • OWDA funded project for GLEC study of

ammonia removal at the Johnstown, Pataskala, Canal Winchester and Southwest Licking Sewer District.

  • Instream evaluation of effluent ammonia and

total N.

  • All four plants showed ability to meet

proposed new criteria.

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SLIDE 30

Triennial Review ‐ Cadmium

  • EPA published revised

aquatic life criteria for cadmium in 2016.

  • New aquatic toxicity

tests.

  • Hardness based.
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SLIDE 31

Triennial Review

  • Copper
  • Fluoride
  • Strontium
  • Barium
  • Peracetic Acid
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SLIDE 32

WQBEL Variances

  • New federal rules
  • EPA encouraging use of variances
  • Individual variances must be adopted
  • Individual variances need reviewed every 5

years

  • Mercury GV
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SLIDE 33

Permitting tips

  • Early meetings?
  • Look at the data!
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SLIDE 34

PEQ Multipliers

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PEQ Example ‐ Barium

  • Two data points 158 ug/l, 130 ug/l
  • PEQmax = 158 x 3.8 = 600 ug/l
  • PEQavg = 600 ug/l x 0.73 = 438 ug/l
  • WLAmax = 4000 ug/l
  • WLAavg = 420 ug/l
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PEQ Example ‐ Barium

  • Effluent data – 12 samples, 158 ug/l max
  • PEQmax = 158 x 1.6 = 253 ug/l
  • PEQavg = 253 x 0.73 = 185 ug/l
  • WLAavg = 420 ug/l
  • 185/420 = 44%, No limits or monitoring
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SLIDE 37

Questions?

Ashley Ward, P.E. NPDES Supervisor Division of Surface Water Ashley.ward@epa.ohio.gov (614) 644‐4852

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SLIDE 38

Section 401 and Isolated Wetland Permitting in Ohio

Joni Lung Division of Surface Water

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SLIDE 39

Overview

  • Wetland and stream identification
  • Applicable laws and rules
  • Permitting process
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What is a wetland?

  • ORC 6111.02 ‐ "Wetlands" are those areas that are

inundated or saturated by surface or ground water at a frequency and duration that are sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. "Wetlands" includes swamps, marshes, bogs and similar areas that are delineated in accordance with the 1987 United States Army Corps of Engineers (Corps) wetland delineation manual and any

  • ther procedures and requirements adopted by the

Corps for delineating wetlands.

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SLIDE 41

A wetland must have…

  • 1. Hydric soils
  • 2. Presence, or indicators, of hydrology
  • 3. > 50% hydrophytic vegetation
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Are these wetlands?

Photo Credits‐ Ohio EPA

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Ohio Categories of Wetlands

OAC 3745‐1‐54 (C)

  • Category 1 – minimal functions, do not provide critical habitat

for T&E species. May have hydrologic isolation, low species diversity, predominance of non‐natives, limited potential to improve

  • Category 2 – moderate habitat, or hydrological or recreational
  • functions. Dominated by natives, but generally without T&E

species, reasonable potential for reestablishing functions

  • Category 3 – superior habitat, or hydrological or recreational
  • functions. High levels of diversity, natives or high functional
  • values. Contain T&E or T&E habitat. May be forested, may be

vernal pools, bogs, fens

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Streams Must Have

  • Defined bed and bank
  • Ordinary high water mark

– The line of the shore established by the fluctuations

  • f water and indicated by

physical characteristics such as a clear, natural line impressed

  • n the banks, shelving,

changes in the character of soil, destruction of terrestrial vegetation, the presences of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas

Photo Credit‐Ohio EPA

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Applicable Laws and Rules

  • Clean Water Act
  • Ohio Revised Code (ORC):

http://codes.ohio.gov/orc/

  • Ohio Administrative Code (OAC):

http://codes.ohio.gov/oac/

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Clean Water Act

  • Section 404 – Corps
  • Section 401 – Ohio EPA

– Issue a 401 for any federal license or permit that may result in a discharge to waters – Certify that proposed action does not violate state water quality standards

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SLIDE 47

Ohio Revised Code and Ohio Administrative Code

  • ORC – State laws

– 6111: Water Pollution Control (Including Isolated Wetland Permitting) – 3745.114 and 3745.113: Fees

  • OAC – State rules

– 3745‐1‐01 through 3745‐1‐39: Water Quality Standards – 3745‐1‐50 through 3745‐1‐54: Wetland Water Quality Standards – 3745‐32‐01 through 3745‐32‐03: 401 Water Quality Certifications

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SLIDE 48

Ohio Revised Code

  • 6111.01(H)‐ "Waters of the state" means all

streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border upon, this state, or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.

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SLIDE 49

Ohio Revised Code

  • 6111.04(A)(1)‐ No person shall cause pollution or

place or cause to be placed any sewage, sludge, sludge materials, industrial waste, or other wastes in a location where they cause pollution

  • f any waters of the state.
  • 6111.01(D)‐ “Other wastes” means garbage,

refuse, decayed wood, sawdust, shavings, bark, and other wood debris, lime, sand, ashes, offal, night soil, oil, tar, coal dust, dredged or fill material, or silt…

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SLIDE 50

Permitting Process

Activities that trigger the need for a 401:

– Filling below the ordinary high water mark of a surface water – Adding fill to create upland, change the bottom elevation, or create impoundments of water – Mechanized tree clearing – Mechanized earth moving – Housing developments, power plants, roads, industrial sites, shopping malls, warehouses, landfills, fleeting facilities, power lines and gas lines, sewers, coal mining, subdivisions, etc.

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SLIDE 51

Activities Requiring a Permit

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SLIDE 52

Activities Requiring a Permit

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SLIDE 53

Activities Requiring a Permit

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SLIDE 54

Permitting Process

  • Activities that are exempt from 401:

– Discharge of dredged or fill material that is part of the construction of a federal project specifically authorized by congress – Discharge of dredged or fill material that is not prohibited or otherwise subject to regulation under Section 404 of CWA provided no other federal license

  • r permit is required
  • Normal farming, silviculture, and ranching activities such as

plowing, seeding, cultivating, minor drainage, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices

  • Must be part of an established (on‐going) farming,

silviculture, or ranching operation

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Permitting Process

  • Activities that are exempt from 401:

– Discharge of dredged material does not include:

  • Activities that involve only the cutting or removing of

vegetation above the ground (e.g., mowing, rotary cutting, and chainsawing) where the activity neither substantially disturbs the root system nor involves mechanized pushing, dragging, or other similar activities that redeposit excavated soil material

  • Activities that are exempt from Isolated Wetland

Permitting:

– Filling of isolated wetlands created by previous coal mining activities when remining is proposed – No other exemptions apply for filling isolated wetlands

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Permitting Process

  • Determine whether you will impact a wetland
  • r other surface water

– Helpful to hire an environmental consultant to perform a wetland and stream delineation and assessment – Not required to hire a professional, but should have someone with knowledge of plants and soils perform the delineation

  • Send the delineation report to Corps for a

jurisdictional determination

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SLIDE 57

Permitting Process

Site Assessment

Jurisdictional determination

Isolated wetland

Isolated wetland permit from Ohio EPA Jurisdictional water Individual 401 from Ohio EPA and 404 from Corps Nationwide Permit (NWP)

NWP from Corps, covered under general 401 WQC from Ohio EPA. Individual 401 WQC not required. NWP from Corps, not covered under general 401 WQC from Ohio EPA. Individual 401 WQC required. NWP from Corps, not covered under general 401 WQC from Ohio EPA, but Director’s Authorization granted.

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SLIDE 58

401 WQC Application: Antidegradation Review

OAC 3745‐1‐05 (C)(5)

Allows the director to authorize a lowering of water quality after:

  • Alternatives analysis
  • Review of social and economic issues
  • Intergovernmental review
  • Public involvement
  • Director determines whether lower water quality

is necessary to accommodate important social or economic development in the area

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SLIDE 59

401 WQC Application: Antidegradation Alternatives Analysis

  • Alternatives analysis must be prepared in

accordance with 40 C.F.R. Part 230, OAC 3745‐1‐ 05 and OAC 3745‐1‐54

  • No discharge of fill is allowed if there is a

practicable alternative to the proposed discharge

  • Applicants must evaluate all practicable

alternatives and demonstrate that their proposed alternative is the least environmentally damaging alternative

  • Applicants must also demonstrate avoidance and

minimization

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SLIDE 60

401 WQC Application: Compensatory Mitigation

  • Mitigation should be conducted in accordance

with 33 C.F.R. Part 332, ORC 6111.30, and OAC 3745‐1‐54

– Mitigation bank – In‐lieu fee program – Individual mitigation projects (permittee responsible)

  • Can only be considered after determination

that impacts are allowable

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SLIDE 61

Nationwide Permits

  • Nationwide Permits (NWPs) are reissued every

5 years; current permits expire on March 18, 2022

  • Ohio EPA has granted WQC to 404 NWPs for

certain types of projects that are similar in nature and cause minimal degradation to waters of the state

  • Project must comply with all terms and

conditions of the WQC for the NWPs

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SLIDE 62

2017 Nationwide Permits

  • Final 2017 nationwide permits (NWPs) were

effective on Mar. 19, 2017

  • 401 WQC for the NWPs issued on Mar. 17,

2017

  • Copies of the NWP documents are available
  • n “Nationwide Permits” tab here:

www.epa.ohio.gov/dsw/401/permitting.aspx

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SLIDE 63

2017 Nationwide Permits Director’s Authorization

  • Requirements are in Appendix A of the 401

WQC for the NWPs

  • Flat fee of $2,000
  • Application form is required with submittal
  • Includes an opportunity for public comments
  • n received applications
  • If the mitigation required by the Corps is not

adequate, an individual 401 will be required

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SLIDE 64

2017 Nationwide Permits Stream Eligibility

  • Requirements are in Appendix C of the 401 WQC for the NWPs
  • Condition only applies to NWP 4, 6, 7, 12, 13, 14, 15, 16, 18, 22,

23, 25, 29, 30, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 45, 51, 53 and 54

  • Map shows watersheds falling within one of the following three

areas:

  • Eligible for 401 coverage under NWP (no further information needed);
  • Possibly eligible (with further information – use flow charts);
  • Ineligible for 401 coverage under NWPs.
  • Flow charts only apply to resources located in the possibly eligible

areas

  • Map is available on “Nationwide Permits” tab here:

www.epa.ohio.gov/dsw/401/permitting.aspx

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SLIDE 65
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SLIDE 66

Common Application Pitfalls

  • Submittal of incomplete or inaccurate

information

  • Application materials are scattered and

unorganized

  • Mitigation plan is not in accordance with Ohio

EPA rules and federal mitigation rule (33 C.F.R. Part 332)

  • Alternatives analysis is lacking necessary

information

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SLIDE 67

Helpful Tips for Successful Completion

  • f the Process
  • Hire an experienced consultant to perform the

resource assessments and prepare the application package

  • Plan ahead: entire process for individual 401/404

can take more than a year

  • Schedule a meeting with the Corps and Ohio EPA

prior to submitting your application

  • Ensure that your application is complete and
  • rganized prior to submission
  • Minimize your impacts to qualify for

coverage under a Nationwide Permit

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SLIDE 68

Contact info:

Joni Lung Division of Surface Water Phone: (614) 644‐2152 joni.lung@epa.ohio.gov Ohio EPA Division of Surface Water 401 website: epa.ohio.gov/dsw/401/permitting.aspx

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SLIDE 69

Questions?