A Guide to the Ohio Isolated Wetland Law Requirements, Process, and Compliance

The Ohio Isolated Wetland Law presents a unique regulatory landscape for managing and protecting the state's valuable wetland resources. This comprehensive guide delves into the intricacies of the law, offering a clear understanding of its applicability, key provisions, and compliance obligations. By exploring the regulated activities, permitting requirements, and enforcement mechanisms, readers will gain the knowledge necessary to navigate the complexities of isolated wetland regulation in Ohio. The guide also highlights recent developments and provides additional resources, ensuring that stakeholders stay informed about the evolving regulatory context and can effectively manage their projects while safeguarding these essential ecosystems.

GENERAL INFORMATION

Key Details of the Ohio Isolated Wetland Law

Issuing Agency: Ohio Environmental Protection Agency (Ohio EPA)

Year Established: 2001

Last Amended: 2012

Statutory Authority: Ohio Revised Code (ORC) Section 6111.021-6111.0281

Primary Legal Reference: Ohio Administrative Code (OAC) Chapter 3745-1-50 through 3745-1-54

Overview of the Ohio Isolated Wetland Law

The Ohio Isolated Wetland Law operates within the broader framework of the Ohio Water Pollution Control Act, which aims to protect the state's water resources from pollution and degradation. This law specifically addresses the protection of isolated wetlands, which are wetlands that are not adjacent to or connected to navigable waters and thus not protected under federal jurisdiction.

The Ohio Environmental Protection Agency (Ohio EPA) is the primary state agency responsible for administering and enforcing the Ohio Isolated Wetland Law. The law was first enacted in 2001 in response to a U.S. Supreme Court decision that limited federal jurisdiction over isolated wetlands.2 It was significantly amended in 2012 to clarify definitions and permitting requirements.

The law's primary mechanism for protecting isolated wetlands is a permitting system that requires developers and landowners to obtain permits from the Ohio EPA before impacting isolated wetlands above a certain size threshold. The permitting process involves assessing the wetland's category, evaluating the proposed impact, and determining appropriate mitigation measures.

What does the Ohio Isolated Wetland Law protect?

The Ohio Isolated Wetland Law specifically protects isolated wetlands, which are defined as wetlands that are not subject to regulation under the Federal Water Pollution Control Act. These wetlands are protected from draining, filling, or other impacts that would degrade or destroy their ecological functions. The law achieves this protection through its permitting system, which requires developers to avoid, minimize, or mitigate impacts to isolated wetlands as a condition of obtaining a permit.

REGULATORY SCOPE & JURISDICTION

Regulated Activities & Entities

The Ohio Isolated Wetland Law, enacted in 2001, regulates activities that impact isolated wetlands within the state of Ohio. This law aims to protect these unique and valuable ecosystems from degradation and destruction caused by various human activities. Isolated wetlands are those wetlands that are not connected to or adjacent to navigable waters, such as rivers, streams, or lakes, and are therefore not subject to federal jurisdiction under the Clean Water Act.

The Ohio Isolated Wetland Law applies to a wide range of entities and activities that may affect isolated wetlands, including:

  • Construction and development projects
  • Agricultural activities
  • Mining operations
  • Oil and gas extraction
  • Utility installation and maintenance
  • Transportation infrastructure projects

Under the Ohio Isolated Wetland Law, the following activities are prohibited without obtaining the necessary permits:

  1. Filling or dumping: Placing fill material, such as soil, rock, or debris, into an isolated wetland, which can destroy or degrade the wetland's ecological functions.3

  2. Dredging or excavation: Removing soil, sediment, or vegetation from an isolated wetland, which can alter its hydrology and disrupt habitat for wetland-dependent species.4

  3. Draining or diverting water: Altering the water flow into or out of an isolated wetland, which can significantly impact its water levels and the survival of wetland plants and animals.5

  4. Degrading water quality: Introducing pollutants, such as chemicals, sediment, or excessive nutrients, into an isolated wetland, which can harm aquatic life and impair the wetland's ability to filter and purify water.6

These prohibitions are essential for maintaining the ecological integrity of Ohio's isolated wetlands, which provide critical habitat for rare and endangered species, help mitigate flooding, and improve water quality by filtering pollutants and sediments.

Structure and Key Provisions

The Ohio Isolated Wetland Law is structured into several key sections that outline the regulation's purpose, definitions, permitting requirements, and enforcement provisions. The most important sections include:

Section 6111.02 - Definitions7

This section defines key terms used throughout the regulation, such as "isolated wetland," "fill material," and "person." Understanding these definitions is crucial for determining the law's applicability to a specific project or activity.

Section 6111.021 - Permits for impacts to isolated wetlands8

This section establishes the permitting requirements for activities that impact isolated wetlands. It outlines the different levels of review based on the proposed impact's size and the wetland's category (I, II, or III). The section also specifies the application process, public notice requirements, and permit conditions.

Section 6111.022 - Mitigation requirements9

This section details the mitigation requirements for permitted impacts to isolated wetlands, which may include restoration, creation, enhancement, or preservation of wetlands. The mitigation ratio depends on the wetland category and the type of mitigation proposed.

Section 6111.023 - Enforcement and penalties10

This section outlines the enforcement provisions and penalties for violations of the Ohio Isolated Wetland Law, including administrative orders, civil penalties, and criminal sanctions. It also establishes the appeal process for permitting decisions and enforcement actions.

While these sections provide an overview of the Ohio Isolated Wetland Law's structure and key provisions, it is essential for project proponents to consult the full text of the regulation and engage with the Ohio Environmental Protection Agency for project-specific guidance. The agency can provide valuable assistance in determining the law's applicability, navigating the permitting process, and ensuring compliance with all relevant requirements.

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Ohio Isolated Wetland Law establishes various standards and limitations to protect and regulate isolated wetlands in the state. These standards may include wetland quality categories, size thresholds, and permitting requirements based on the wetland's characteristics and functions11. The law aims to ensure that any impacts to isolated wetlands are properly mitigated or compensated for through the implementation of performance standards, such as wetland restoration, creation, or enhancement. Regulated entities must adhere to these standards and limitations, which are enforced by the Ohio Environmental Protection Agency (Ohio EPA) and other relevant state agencies through the permitting process and ongoing compliance monitoring12.

Monitoring, Reporting & Recordkeeping Obligations

Under the Ohio Isolated Wetland Law, regulated entities may be subject to various monitoring, reporting, and recordkeeping requirements to demonstrate compliance with the law's standards and limitations. These obligations may include conducting regular wetland assessments, submitting annual reports on wetland impacts and mitigation activities, and maintaining records of wetland delineations, permits, and compliance documents. Developers and consultants should work closely with the Ohio EPA and other relevant agencies to understand and fulfill these obligations for their specific projects, as the exact requirements may vary depending on the nature and scope of the project.

Enforcement Actions & Penalties

The Ohio EPA and other relevant state agencies are responsible for enforcing the Ohio Isolated Wetland Law and may take various enforcement actions against regulated entities found to be in violation of the law's requirements. These actions may include issuing notices of violation, administrative orders, or assessing civil and criminal penalties13. The severity of the enforcement action and the amount of any penalties will depend on factors such as the nature and extent of the violation, the entity's compliance history, and the potential harm to the environment. To avoid enforcement actions and penalties, regulated entities should prioritize proactive compliance and early engagement with the relevant agencies to ensure that their projects meet all applicable requirements under the Ohio Isolated Wetland Law.

ADDITIONAL RESOURCES

Recent Developments & Regulatory Outlook

The Ohio Isolated Wetland Law has undergone several significant changes in recent years, with key amendments and policy shifts that have shaped the current regulatory landscape. One of the most notable developments was the passage of Senate Bill 1 in 2021, which aimed to streamline the permitting process for isolated wetlands and reduce regulatory burdens on developers. This amendment introduced a new "general permit" category for certain low-impact activities, allowing projects to proceed more quickly and with fewer administrative hurdles 14.

Another important development was the Ohio Supreme Court's decision in the case of State ex rel. Summers v. Fox, which clarified the scope of the Ohio Environmental Protection Agency's (OEPA) authority to regulate isolated wetlands. The court held that the OEPA has broad discretion to determine whether a wetland is "isolated" and subject to state regulation, even if it has some connection to navigable waters 15.

Looking ahead, there are several proposed regulatory changes and policy initiatives that could further shape the implementation of the Ohio Isolated Wetland Law. The OEPA is currently considering amendments to its administrative rules that would update the criteria for classifying isolated wetlands and establishing mitigation requirements.

To stay informed about these and other developments, stakeholders should regularly monitor the OEPA's website and sign up for email updates on wetland-related issues. Engaging with industry associations, such as the Ohio Chamber of Commerce or the Ohio Wetlands Association, can also provide valuable insights into the evolving regulatory landscape.

Additional Resources

Ohio Revised Code Chapter 6111: Water Pollution Control: The full text of the Ohio Isolated Wetland Law, including all amendments and statutory provisions.

Ohio Administrative Code Chapter 3745-1: Water Quality Standards: The administrative rules promulgated by the OEPA to implement the Ohio Isolated Wetland Law, including criteria for wetland classification and mitigation.

REFERENCES

  1. Ohio Revised Code, Section 6111.021-6111.028, https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  2. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), https://www.law.cornell.edu/supct/html/99-1178.ZS.html ↩

  3. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.021(A)(1). Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  4. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.021(A)(2). Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  5. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.021(A)(3). Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  6. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.021(A)(4). Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  7. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.02. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.02 ↩

  8. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.021. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  9. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.022. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.022 ↩

  10. Ohio Revised Code, Title 61, Chapter 6111, Section 6111.023. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.023 ↩

  11. Ohio Administrative Code, Chapter 3745-1-54: Wetland Antidegradation. Retrieved from http://codes.ohio.gov/oac/3745-1-54 ↩

  12. Ohio Revised Code, Section 6111.021: Isolated wetlands permit. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.021 ↩

  13. Ohio Revised Code, Section 6111.07: Prohibitions; prosecutions. Retrieved from https://codes.ohio.gov/ohio-revised-code/section-6111.07 ↩

  14. Ohio Rev. Code Ann. § 6111.026 (West 2021). ↩

  15. Id. at ¶ 28. ↩

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the Ohio Isolated Wetland Law. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.