On June 5, 2012, Governor Kasich signed into law Senate Bill 294. Included in this bill were revisions to Ohio Revised Code (“R.C.”) sections related to wetlands. In general, the revisions allow the state or any other approved entity to create an in-lieu fee mitigation program and allows in-lieu fees to be used as required mitigation for Section 401 Water Quality Certifications and Isolated Wetlands permits. Pursuant to R.C. 6111.02(S), the term “in-lieu fee mitigation” means a payment made by an applicant to satisfy a wetland mitigation requirement established in sections 6111.02 to 6111.027 of the Revised Code.

In April of 2013, Ohio EPA released for public comment certain proposed revisions to OAC 3745-1-54 to address the changes made by Senate Bill 294. OAC 3745-1-54 addresses the antidegradation requirements for discharges/impacts to wetlands. The proposed revisions allow in-lieu-fees to be used as required mitigation for Section 401 Water Quality Certifications and Isolated Wetlands permits.

Ohio EPA is currently preparing a response to the public comments received on the proposed revisions. Thereafter, the proposed revisions will be approved by the Director of Ohio EPA and filed with JCARR. The final revised rule may be adopted by early 2014.