New EPA Navigable Waters Protection Rule – What You Need to Know in Ohio

The New Navigable Waters Protection Rule (NWPR) became effective on Monday June 22, 2020 in 49 states with the exception of Colorado. This rule change clearly defines which waters are regulated by the Federal Government, and which waters are regulated by the States. In Ohio, most features determined to no longer be federally jurisdictional will still be regulated by Ohio EPA. The infographic below has an overview of which water features are regulated by the United States Army Corps of Engineers (USACE) under Section 404 of the Clean Water Act and which excluded features fall to the State. To view above image full size, click here. To view a PDF showing examples of each feature, click HERE.


 

 

What you need to know:

  1. Process:
    This does not change what is a wetland or how they are identified. Wetland Delineation boundaries will still be verified through USACE’s Jurisdictional Determination process. This does not change what is a wetland or how they are identified. Wetland Delineation boundaries will still be verified through USACE’s Jurisdictional Determination process. 
  2. Permitting:
    In Ohio, most of the federally excluded features will still be considered “waters of the state” under the Ohio Revised Code and impacts will require an Isolated Wetland permit from Ohio EPA. Below is a breakdown of both the federal and state general permitting processes:USACE Nationwide Permit (no changes)
    Up to 0.50 acres of total surface area impact (Wetlands & Streams)
    Up to 300 LF of perennial or intermittent stream impactOEPA Level 1 General Permit (new permit was finalized on June 25th, 2020 to address NWPR)
    Up to 0.50 acres of isolated Category 1 & 2 wetland impact – all wetland impact requires Pre-Activity Notice (PAN)
    Ephemeral stream impact – stream impacts over 300 LF require a PAN.

    For Ohio EPA Isolated permits, an Approved Jurisdictional Determination (AJD) must first be obtained from USACE.

    For impacts over these thresholds, additional permitting options are potentially available.

  3. Previously issued Jurisdictional Determinations and permits:
    Previously issued Approved Jurisdictional Determinations (AJD) remain valid for five years after the date of issuance. It is possible to request a new AJD under the new Navigable Waters Protection rule if it is beneficial to your project.
    Previously issued permits remain valid until permit expiration.

CT Consultants is staying on top of developments and can help navigate permitting strategy and regulatory processes.

Contact me for further information on how these changes will affect your projects.

Carrie Ricker, PWS
CT Consultants, Inc.
Director of Ecological Services
(440) 530-2208
cricker@ctconsultants.com