The U.S. Army Corps of Engineers (Corps) has established a system of Nationwide Permits (NWPs), which provide for a somewhat streamlined permitting process for certain stream and wetland impacts that are deemed to have a minimal cumulative impact on aquatic resources. In order to use these NWPs in Ohio, the Ohio EPA must issue a Section 401 Certification of each NWP. 

Historically, Ohio EPA has established conditions in its certification of the NWPs, which significantly limited the availability of NWPs for even minor impacts to intermittent and ephemeral streams. Ohio EPA is exploring options to more clearly identify the types of stream impacts that can be authorized via an NWP. As discussed below, in some areas of the state, NWPs will be more widely available. In other areas, which include designated high-quality streams, it will be very difficult to have projects approved via an NWP without an individual Section 401 Certification. 

After a year-long consideration of options, on February 3, 2015, Ohio EPA publicly presented the concepts behind its proposed modification of the Section 401 Certification of NWPs. The PowerPoint presentation is available at the agency’s website. 

In essence, the Ohio EPA proposes to certify the NWPs without substantial limitations for stream impacts in those watersheds that do not support designated high quality streams. For watersheds that include designated high quality streams, projects that could otherwise be authorized by a NWP, will require an individual 401 Certification. These high quality watersheds are primarily located in the eastern and southern areas of Ohio. Projects in these designated watersheds are likely to require an individual Section 401 Certification regardless of the size or type of stream impacted. Ohio EPA has provided a shape file identifying the watersheds supporting high quality streams projects. 

This is a significant change in Ohio EPA’s approach. We recommend that anyone with projects that may benefit from the availability of NWPs to carefully monitor the Ohio EPA’s consideration of these changes. Proposed rules are likely to be issued for public comment by mid-April of this year.