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									July 30, 2007
                                CHAPTER 7
                        ENVIRONMENT AND DRAINAGE
TABLE OF CONTENTS

7.              GENERAL INTRODUCTION

7.1.            RIGHT-OF-WAY DRAINAGE

7.2.            DRAINAGE RELATIVE TO PLATTING
7.2.1.          Preliminary Plat Drainage
7.2.2.          Construction Drawing Drainage
7.2.3.          Record Plat Drainage
7.2.4.          Typical Drainage Features Within Drainage Easements
7.2.5.          Types of Drainage Easements
7.2.6.          Sample Procedure for Platting (ORC 711 Plats)

7.3.            DRAINAGE - ZONING ISSUES
7.3.1.          Major Drainage Features

7.4.            STORMWATER INTRODUCTION
7.4.1.          NPDES Phase II Impacts
7.4.2.          Construction Discharge Permits
7.4.3.          Post-Construction Controls
7.4.4.          Phase II, The MS4 Operator, and the County Engineer
7.4.5.          Stormwater Management Districts
7.4.6.          Benefits of the District
7.4.7.          Erosion Controls

7.5.            DITCHES AND WATERCOURSES
7.5.1.          Petition Through the Board of County Commissioners
7.5.2.          Petition Ditch Maintenance (ORC Chapter 6137)
7.5.3.          Joint County and Interstate Petition Ditches
7.5.4.          Petition Through the County Soil & Water Board of Supervisors
7.5.5.          Group Agreement Projects \GROUP AGREEMENT PROJECTS

7.6.            CONSERVANCY DISTRICTS

7.7.            REMOVAL OF MILLDAMS

7.8.            COUNTY RECLAMATION

7.9.            FLOODPLAIN MANAGEMENT AND FLOOD INSURANCE

7.10.           OTHER ENVIRONMENTAL IMPACTS
7.10.1.         National Environmental Policy Act (NEPA).
7.10.2.         Purpose and Need Statement
7.10.3.         Ecological Resources
7.10.4.         Streams, Rivers, and Watercourses
7.10.5.         Scenic Rivers
7.10.6.         Navigable Waterways
7.10.7.         Other Surface Waters
7.10.8.         Wetlands
7.10.9.         Terrestrial Habitat.


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7.10.10.       Threatened and Endangered Species

7.11.          WATERWAY PERMITS
7.11.1.        Nationwide Permits
7.11.2.        Pre-Construction Notification (PCN)
7.11.3.        Individual 404 Permit
7.11.4.        404/401 Permit
7.11.5.        Section 10
7.11.6.        US Coast Guard Section 9 Bridge Permit

7.12.          OHIO ENVIROMENTAL PROTECTION AGENCY SECTION 401 WATER
               QUALITY CERTIFICATION

7.13.          OHIO ENVIROMENTAL PROTECTION AGENCY SECTION ISOLATED
               WETLANDS PERMIT

7.14.          DRINKING WATER RESOURCES

7.15.          FARMLAND

7.16.          PUBLIC LANDS SECTION 4(F) OF THE U.S. DOT ACT OF 1966

7.17.          SECTION 6(F) OF THE LAND AND WATER CONSERVATION ACT

7.18.          SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT

7.19.          AIR QUALITY [CLEAN AIR ACT AMENDMENTS OF 1990

7.20.          NOISE (FHWA NOISE ANALYSIS GUIDANCE

7.21.          COMMUNITY IMPACTS & ENVIRONMENTAL JUSTICE

7.22.          HAZARDOUS MATERIALS

7.23.          ASBESTOS

7.24.          UNDERGROUND PETROLEUM STORAGE TANKS

7.25.          PUBLIC INVOLVMENT

Appendix 7-A   Ohio's Drainage Laws, An Overview, OSU Extension Bulletin 822
Appendix 7-B   Ohio Drainage Laws & Petition Procedures, OSU Extension Bulletin 482
Appendix 7-C   NPDES Process for Local-Let Projects
Appendix 7-D   Guide for Ohio EPA Construction Permits
Appendix 7-E   ODNR Scenic Rivers
Appendix 7-F   Navigable Waters of Ohio




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CHAPTER 7, ENVIRONMENT AND DRAINAGE

7. GENERAL ENVIRONMENT AND DRAINAGE INTRODUCTION

    The public's perception of water can vary greatly from a resource to be coveted
    and protected, to an enemy to be disposed of in excess. While most of the focus is
    on the latter, environmental issues continue to play an increasing function in the
    role of the County Engineer.

    The statutory requirements for the control and improvement of drainage in Ohio
    are in several ORC Chapters and they assign responsibility to various agencies of
    government. There are three distinct areas and processes that the County Engineer
    could be responsible for drainage issues. First and primary is the road right-of-
    way drainage. Second is development and stormwater drainage. Third is
    drainage relative to petition ditches. Some of these roles are by statue as the
    Elected County Engineer while others are through additional appointed
    responsibilities through the County Commissioners. This chapter will attempt to
    spell out these varied roles.

    Along with this drainage work and/or other construction activities, it may be
    necessary to contact various state and federal agencies for permits and approval of
    plans as they relate to possible environmental impacts or monitoring programs
    already in place in certain jurisdictions.

    More than most areas that effects the daily duties of the County Engineer,
    environmental regulations are constantly changing and are a mix of regulations
    developed at state and federal levels involving differing state and federal
    agencies. In analyzing these requirements, three informational sources are
    recommended for the County Engineer to stay abreast of these changes. First is to
    participate in CEAO's environmental oriented seminars and education activities.
    Second is to consult the various manuals prepared by ODOT's Office of
    Environmental Services. The manuals are updated on a regular basis and cover
    most of the areas of concern to the County Engineer. The manuals are helpful
    even when a project is not an ODOT project. These manuals are available on the
    Office of Environmental Services webpages. Third is to consult the webpages of
    the various environmental regulators. The principal regulators are the Army Corp
    of Engineers District Offices, the Ohio EPA and the Ohio Department of Natural
    Resources. (Note: The Huntington District co-ordinates the efforts for the various
    Army Corp offices covering Ohio). Finally and perhaps the most helpful, is to
    consult other County Engineers, especially those who serve on the CEAO
    Drainage/Environmental Committee.

    Upon discovery of a hazardous material spill or condition, the County Engineer
    should immediately notify the appropriate responsible governmental agencies.
    Generally both the local fire department or county emergency planning agency
    should be notified. For certain spills of hazardous material, the spiller is also



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     required to notify the Ohio EPA's Emergency Response Unit. Also See Section
     7.22. - Hazardous Materials.

7.1. RIGHT-OF-WAY DRAINAGE

    Under the ORC, drainage responsibilities are assigned to the County Engineer for
    the construction, reconstruction, improvement, maintenance, and repair of bridges
    and roads under the jurisdiction of the County Commissioners and the Board of
    Township Trustees. Drainage through and along the road right-of -way is
    paramount. All watercourses must be kept open to allow for the free flow of water
    so as to not harm the upstream property owners or damage the roadway.

    The County Engineer may enter upon the lands adjacent to the roadway or stream
    to do work as necessary to accomplish this result. In this process, it may be
    necessary to reach agreement with landowners as to compensation and damages in
    accordance with ORC 5543.12 and 5543.13.

    As an aid to maintaining roadside ditches for drainage purposes the County can
    control, through a permit system, the original installation of driveway culverts.
    Both size of tile and elevation can be specified to maintain adequate drainage. See
    Chapter 5, Section 5.11.6. - Driveway approaches.

    The same principles of drainage that apply to surrounding landowners are
    applicable for the road Right-of-Way. The lower landowner is responsible to
    accept the natural flow of water and pass it unrestricted along its natural course.
    This is known as the civil law doctrine. This principle has been evolved by court
    decisions over the years to a reasonable-use rule that allows for the acceleration or
    obstruction of surface water flow as long as it is reasonable. For a more detailed
    discussion of drainage laws refer to Appendix 7-A, Ohio's Drainage Laws, An
    Overview, OSU Extension Bulletin 822, published by The Ohio State University
    Extension Office.

7.2. DRAINAGE RELATIVE TO PLATTING

     ORC Chapter 711 outlines platting procedures, and enables rule making
     pertaining to platting of real property. It is important to note the differences in
     Major and Minor Subdivision platting rules and procedures – reference the ORC
     for further information and Chapter 8, Surveys & Land Use, Section 8.6. - Land
     Use - Subdivision Regulation and Planning Agencies. Most communities have a
     Development or Planning Department that will oversee and enforce these rules.
     Agencies that may report their findings for the Department may consist of:

     County Engineer’s Office                      Storm Water District or Utility
     Environmental Services or Sewer District      Water Supply District
     Building & Zoning Department                  Twp Zoning & Planning Department
     Health Department                             Soil & Water District



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     The Departments listed above comprise the Subdivision Review Committee.
     Their comments about the proposed subdivision are delivered to the Planning
     Commission, who recommends approval or denial of the proposed plat to the
     Board of County Commissioners. Ultimately, the Board of County
     Commissioners determines, by resolution, if the proposed plat meets county
     standards.

     The platting process consists of a preliminary plat, construction drawings, and
     final or record plat. A preliminary plat shows the general layout of lots, roads,
     waterways, drainage features, and site access. The construction drawing is the
     document detailing the development of the subdivision. Record plat is the legal
     document that defines the subdivision and its lots, right-of-ways, easements and
     boundaries.

7.2.1. PRELIMINARY PLAT DRAINAGE

     Review of drainage during the preliminary stage of development is crucial. A
     Preliminary Plat is the foundation of the entire development and the building
     blocks for infrastructure design. It is important to have the applicant locate
     important drainage features such as watershed boundaries, major waterways,
     creeks, streams, floodplains, and obstructions within the channel. The plan should
     note and show the location of culverts, bridges, and dams within the watershed
     that may affect the development. A supplement to the plat is a preliminary
     drainage report outlining the approximate flow rates and detention/retention
     requirements. It is important to note how sub-watersheds are proposed to be
     developed within the subdivision. A community may want to plan for two
     drainage systems, minor and major.

7.2.2. CONSTRUCTION DRAWING DRAINAGE

     During this phase of the platting procedure, the infrastructure improvements are
     placed on drawings for review and approval. A minor drainage system may
     consist of storm sewers, headwalls, catch basins, and other lot drainage. The
     minor drainage system typically handles lower frequency storms and alleviates
     local lot flooding. Once the minor drainage system has been inundated with
     water, the design of the major drainage system may be used to transport the
     higher frequency storm. Major drainage system features could include surface
     flood routing, road flood routing, retention/detention facilities, bridges, and
     minimum opening elevations for buildings. Both drainage systems are checked to
     ensure they meet the local design standards for drainage and water quality. Some
     communities evaluate the roadway and lot drainage, while others only review
     drainage within the public right-of-way.

     A drainage plan consists of the proposed grading, erosion control, and storm
     sewer infrastructure. It is important to evaluate each lot for proper drainage and



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     protection from potential flooding. A minimum opening elevation note on the
     drawing informs the builder to set the home at a proper elevation in areas adjacent
     to flood routes, creeks, and floodplains. There may be a requirement for
     additional freeboard from the high water elevation to the lowest opening of the
     home. Many communities have adopted Ohio Department of Transportation
     design standards for roadways, or have established their own drainage
     specifications.

7.2.3. RECORD PLAT DRAINAGE

     This legal document creates the individual lots within the development. Record
     plats show lot property lines, easements (drainage, sanitary, water, etc.), building
     setback lines, survey monuments, benchmarks, right-of-way, and boundary of the
     platted area. The plat is an excellent place to provide documentation about
     drainage within the development. Many drainage features are located within a
     drainage easement shown oo the record plat. Typically, only drainage easements
     are shown outside of the limits of the dedicated right-of-way, not the actual
     feature.

7.2.4. TYPICAL DRAINAGE FEATURES WITHIN DRAINAGE EASEMENTS

    Storm Sewer System         Bridges                     WetlandsLot            Swales
    Creeks & Streams           Retention/Detention         Ponds                  Underdrain System
    Culverts                   Water Quality BMP’s*        Collection Swales      Sump Pump Lines

    * BMP’s – Best Management Practices.

     To assist in defining ownership of drainage easements you can establish different
     types of drainage easements. This makes reading and understanding the type of
     feature located within the drainage easement easier. In addition, maintenance
     responsibility can be assigned to the type of easement. Sections 7.5-7.8 provide
     information about county ditch petitions and other watercourse improvements,
     maintenance alterations and repairs.

7.2.5. TYPES OF DRAINAGE EASEMENTS
     Abbreviation            Description                            Maintenance Responsibility

     HOA                     Home Owners Association                Management Association or
                                                                    Board of Home Owners*
    PUB                      Public                                 County Engineer,
                                                                    Commissioners, Storm Water
                                                                    District/Utility, Ditch Petition
     PVT                     Private                                Individual Property Owner


     * Documentation establishing the Association and their Rules/Restrictions may be recorded
     separately; an HOA Easement is a form of a Private Drainage Easement




                                                6
     It is possible to have a record plat with multiple types of drainage easements
     shown. This means more than one entity may be responsible for maintenance,
     repair, or replacement of the drainage feature in the easement. Communities
     should take care when establishing the types of drainage easements and
     responsibilities. It is best to consult with your local prosecutor’s office and elected
     officials before defining responsibilities. In many cases, the community may have
     to create a funding mechanism and/or department to address maintenance
     concerns.

     Finally, important design features such as benchmarks, flood routes, floodplains,
     flood limits, and minimum opening elevation can be noted on the plat. The record
     plat should act as a supplement to the construction infrastructure improvements
     by means of boundary lines, easements, and other notations.

7.2.6. SAMPLE PROCEDURE FOR PLATTING - ORC Chapter 711 Plats

     1. Locate site on USGS Quadrangles or local topography resource (GIS).

     2. Define watershed(s) draining to and thru the proposed development.

     3. Isolate soil type and characteristics.

     4. Perform a preliminary drainage study:

        a.   Locate detention/retention facility.
        b.   Calculate pre-developed flow rate (Q) in cubic feet per second (c.f.s.).
        c.   Calculate post-developed flow rate based upon build out condition.
        d.   Determine estimated storage & water quality volumes.

     5. Submit a preliminary subdivision plat:

        a. Lot dimensions.
        b. Street layout
        c. Detention basin location.
        d. Flood routes.
        e. Floodplains.
        f. Wetlands/Sensitive Acres.
        g. Note soils types.
        h. Show topography – 2’ contours preferred.

     6. Construction Drawing Review:

        a. Minor System (Storm Sewers):

         Check the drainage areas, runoff coefficient, pipe diameter, and slope.




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         Drainage swales along rear of lots directing surface runoff to storm sewer
         system.
         Lot swales, builder swales, and roof runoff.

         b. Culverts:

         Check appropriate headwater depth,
         Verify minimum opening elevations,
         Provide flood routing,

      7. Preliminary Plat reviewed by County Staff (Subdivision Review Committee):

         a. Comment to developer regarding plan layout & requirements

     8. Planning Commission (Appointed by County Commissioners):

         a. Reviews Subdivision Review Committee comments.
         b. Evaluates the plan to ensure it meets the Subdivision Rules & Regulations.
         c. Recommends approval/disapproval to Commissioners.

      9. County Commissioners:

         d. Approve/Deny the plat based upon Subdivision Regulations

7.3. DRAINAGE - ZONING ISSUES - ORC Chapters 303, 519

      Zoning can be defined as the division of a jurisdiction, such as a township, into
      separate districts for the purpose of regulating the use of land in each district in
      order to promote the orderly development of the area and to protect the public
      health, safety, and general welfare. Zoning regulations contain two parts, a zoning
      map and a zoning text or resolution. ORC Chapters 303 or 519 allow for the
      creation and adoption of zoning rules and regulations.

      Depending upon the current zoning of the parcel, the owner may need to change
      the zoning of their property. The owner should follow the local zoning rules for
      their community. Note that each county has its separate zoning rules apart from
      one another. It is also possible that a township will have their own zoning rules
      enacted by the Trustees. The County Engineer should be aware of each
      community zoning rules, procedures, and contact information.

      When evaluating a zone change request or reviewing a property’s zoning district,
      pay close attention to drainage related items.

      Whether counties have township zoning, county zoning or no zoning, various
      counties utilize a lot split committee or other means to review and recommend
      approval or disapproval of lot splits.



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7.3.1. MAJOR DRAINAGE FEATURES

    Drainage Feature                             Resource Location

    Floodways
    Floodplains                                  FIRM* Panels
    Major Streams                                USGS** Quadrangle – blue line waterways
    Regional Detention/Retention                 County Engineer, Storm Water District, GIS***
    Areas of Known Flooding                      Road Superintendents, Local Officials, Residents

      * FIRM – Flood Insurance Rate Maps
     ** USGS – United States Geological Survey
    *** GIS – Geographic Information System

    The above items are an important factor in determining the proper zoning district
    for the parcel. Typically, these areas are not suitable for certain type uses and are
    noted as F-1 zoning. An F-1 district limits the use of the parcel due to the impacts
    of drainage. In all cases, the reviewer should take care and protect drainage ways
    by riparian easements, riparian corridors, building setbacks, parking lot setbacks,
    or by the use of an open space parcel. In addition to protecting these areas, it is
    just as important to protect the structure.

    Consult with your local Floodplain Coordinator or the Ohio Department of
    Natural Resources to determine what studies may be needed. Also, determine if
    your community participates in the National Flood Insurance Program. A study of
    the flood potential on both studied (FIRM) and unstudied streams need be
    considered. A flood study may be required as part of the zoning request to ensure
    the proposed buildings are outside or above the flood limits. When evaluating
    drainage during the zoning process, you may want to consider prioritizing some of
    these factors:

    Loss of Life /Injury to People
    Loss / Damage to Structures
    Flood Impacts (if any)
    Loss / Damage/Personal Property
    Loss / Damage to Materials
    Flood Control / Flood Proofing
    Alternative Flood Routing
    Damage to Public Utilities
    Emergency Response Services

    After careful evaluation of the zoning district, whether proposed or existing, report
    all concerns and findings to the local Zoning Department or Director. Once again,
    check your local community’s rules and procedures to identify who is the
    responsible agency.




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7.4. STORMWATER INTRODUCTION - Clean Water Act, 33 U.S.C. 1251 et seq,
      NPDES Phase II, 33 U.S.C. 1342

      Stormwater management affects all county engineers principally through
      conveyance of roadside drainage. Due to amendments of the Clean Water Act in
      1988, more specifically with the National Pollution Discharge Elimination System
      (NPDES) Phase II Regulations, the County Engineer must include water quality
      factors into design, construction and maintenance of these drainage features.

      County engineers in the more urbanized areas not only deal with roadside
      drainage, but also subdivision drainage where the County Engineer approves
      roads, streets and drainage as part of subdivision plat regulations. Many county
      engineers are faced with complaints arising from subsequent construction
      discharge and post construction discharge problems. This has resulted in an
      awareness of potential maintenance problems on drainage infrastructure outside
      road right-of-way not covered by ditch petition projects. Counties may rely on
      County Sewer District law or Regional Sewer District law for capital
      improvements and operations programs in order to address this growing need.

7.4.1. NPDES PHASE II IMPACTS - Federal Register, Vol. 64, No. 235, Pages 68722
       et seq., Wednesday, December 8, 1999; 40 C.F.R. Parts 9, 122 , 123, and 124

      NPDES rules were mandated by amendments to the Clean Water Act. These
      amendments were developed to improve water quality in the nation’s rivers and
      streams. These improvements are to be developed and implemented as best
      management practices (BMP) that would result in elimination of selected
      pollutants determined to be a particular problem regionally or statewide. The
      Ohio Environmental Protection Agency (OEPA) has been designated by the US
      EPA as the permit holder for Ohio. As a result, all agencies performing any type
      of work covered by these regulations shall file permits for approval with OEPA.
      Phase II regulations went into effect March 8, 2003.

7.4.2. CONSTRUCTION DISCHARGE PERMITS

      Any grading of an area one acre or greater requires a permit (for erosion and
      sediment control purposes) issued by OEPA. This permit, # OHC000002, may be
      viewed online at http://web.epa.state.oh.us/dsw/permits/CGP_renewal_final_s
      .pdf. This permit begins with a Notice of Intent (NOI) and includes among other
      things the description of the project, the owner, ground area to be disturbed (not
      including hard surface such as roadway that is salvaged), and a filing fee.

      A stormwater pollution prevention plan (SWP3) is required to be kept on the site
      at a job trailer for viewing upon request. Elements of the plan include any
      receiving streams, construction limits, erosion and sediment control devices to be
      used and contact information for responsible maintenance personnel.




                                          10
      On CSTP and LBR projects, this permit shall be handled in compliance with
      ODOT’s Project Development Process (PDP). ODOT generally provides bid
      items in the construction contract to file the permit (Item 832) and to provide all
      materials and labor to comply with the permit (Item 833). See Ohio Chapter 4,
      Intergovernmental Cooperation, Section 4.2. - Ohio Department of
      Transportation.

      On projects not bid through ODOT, such as LPA, OPWC, or locally funded
      projects, the County Engineer has flexibility in determining how to file the NOI
      and comply with permit conditions. Options include filing the NOI, and being
      responsible for it, and dictating all the pay items needed, or filing the NOI naming
      the contractor as responsible for maintaining the permit. A flow chart showing the
      steps of permit as it relates to County Engineer projects may be found in
      Appendix 7-B. A chart showing erosion and sediment control specification
      requirements on ODOT-let projects and minimum requirements on locally let
      projects is shown in Appendix 7-C.

      Upon completion of the project, a Notice of Termination (NOT) is filed and the
      project is closed with OEPA.

7.4.3. Post-Construction Controls

      On projects that have grading, or other earth disturbing activities 5 acres or
      greater, the permit requires that the filer address post construction BMPs. These
      BMPs are required to reduce pollutant loadings from vehicular traffic and other
      activities within the road right-of-way. The quantity of runoff to be treated also
      includes that from offsite. A more detailed explanation of the selection and design
      process for these BMPs may be found in the ODOT Office of Structural
      Engineering Post Construction Stormwater Management section that can be
      viewed at http://www.dot.state.oh.us/se/hy/post%20construction.htm.

      A consideration as to how these BMPs are maintained after construction is
      important. The contractor who files for the permit will probably want to be
      released from this work upon job completion or want some type of contract to
      continue maintenance. It is best to consult with your ODOT District and/or
      Surface Water Division of OEPA on how to best handle these situations projects
      let by ODOT. See Chapter 4, Intergovernmental Cooperation, Section 4.5.6. -
      Ohio Environmental Protection Agency

      Because of the potential impacts of detention and resulting right-of-way
      acquisition, ODOT and OEPA agreed to extend the date of complying with this
      portion of the permit until March 1, 2006. Projects bid before this date do not
      require these BMPs. However, after that date, plans are required to include these
      BMPs and the NOI and NOT shall address them as well.




                                           11
     A few items should be kept in mind when selecting and designing BMPs. Off-site
     runoff shall be considered when determining area of treatment. Consideration of
     BMPs as hazards in the right-of-way is important. Amount of maintenance for
     effectiveness is important for effective results. Joint agreements of use of BMPs
     in and out of the road-of-way are possible, but may require expanded authority
     beyond that found in highway operations and may require ditch petitions or
     establishment of stormwater management districts. If you are a Phase II MS4
     operator, you will have to inspect and report on all post-construction BMPs that
     you construct and maintain.

7.4.4. PHASE II, THE MS4 OPERATOR, AND THE COUNTY ENGINEER

     The 2000 United States Census identified 35 counties in Ohio as having census
     tracts of such size and condition that they warrant designation as “urbanized
     areas”. Governmental jurisdictions that maintain storm sewer infrastructure
     (including roadside ditches) within these designated areas were classified as
     Municipal Separate Storm Sewer System (MS4) Operators. These counties were
     listed in Appendix 6 of Federal Register, Vol. 64, No. 235, Page 68812,
     Wednesday, December 8, 1999. Expect the list of MS4 operators to be revised
     upon population and rule changes. Additions to the list will be addressed in future
     appendices to the rules.

     County Engineers may or may not lead the permit for their county. Those that
     maintain drainage infrastructure within these designated area will be expected, in
     the least, to assist in addressing some, if not all, of the six minimum control
     measures required in the Phase II program:

     1.   Public Education and Outreach
     2.   Public Involvement and Participation
     3.   Illicit Discharge Detection and Elimination
     4.   Construction Site Runoff Control Measures
     5.   Post-Construction Control Measures
     6.   Pollution Prevention and Good Housekeeping Measures

     The program and a better description of the types of best management practices
     that can be used can be found at
     www.epa.state.oh,us/dsw/storm/ms_4.index.html.

     The program is really a reporting mechanism to quantify a best faith effort
     towards improving stormwater quality. It involves submitting an application
     consisting of a Notice-of-Intent and a Stormwater Management Plan. Counties
     that are complying with these rules are finding that they are able to include
     maintenance and operations programs that result in an intended or unintended
     betterment of water quality as part of this plan. There is also a fee. OEPA
     reviews these plans for approval.




                                          12
     This five (5) year plan is a compilation of the pollutants deemed locally as the
     largest detriment to stormwater quality, best management practices that best
     control or mitigate those pollutants, and the authority and funding local
     jurisdictions have or will have in carrying out the plan.

     Annual progress reports are submitted at the end of each year. These reports
     summarize the activities needed to carry out the plan, the effectiveness of
     partially or completed items, and updates on funding initiatives and expenditures.

     Federal law requires that the Phase II program be reviewed. The current program
     expires on December 31, 2007. USEPA will review nationally the effects of the
     program and review rules. Federal law also guarantees at least five (5) more years
     after the current program expires.

     If your county becomes a designated county, contacting the CEAO
     Drainage/Environmental Committee is a good beginning to seek details and
     direction at the state level in order to comply with these regulations.

7.4.5. STORMWATER MANAGEMENT DISTRICTS - ORC Chapter 6117

    Counties now have expanded opportunities with administrative authority and
    funding possibilities to deal with strormwater infrastructure operations and
    maintenance inside and outside roadway right-of-way. Sewer District law, ORC
    Chapter 6117, gives county commissioners permissive authority to create districts
    to manage various stormwater quantity and quality issues. With that authority
    comes the ability to set assessments, rates and charges to fund these activities.

     There are two key steps in creating these districts. The first is to establish the need
     for stormwater management, outline the area to be served and state the principal
     functions of the district. The second is to appoint the drainage engineer, more
     precisely the County sanitary engineer for drainage. Law requires that the County
     Engineer be offered the position first. The county engineer has the right to refuse
     the position and this allows the County Commissioners to seek other candidates.
     See Chapter 1, The Office, Sections 1.7.5. -Extra Compensation for Contracted
     Additional Duties and 1.7.5.1.- County Engineer First Refusal.

    Once the district is established, funding sources are sought. Two methods fit
    customary sanitary sewer funding methods: assessments and setting of rates and
    charges.

    Assessments would generally be used to fund capital improvements. To begin this
    process, a General Plan of Drainage is developed citing the type of proposed
    improvement and need for assessment if appropriate. This is presented in a public
    hearing. Once the need for the project has been established, preliminary plans are
    presented with estimated costs at another public hearing. Commissioners then
    approve the plans and let the construction contract. Upon completion of



                                           13
     construction when all costs, including financing costs, are known, property owners
     are assessed. The process henceforth is handled in a manner similar to that used
     for roadway projects.

     Rates and charges may be used for various functions of the district, including
     administration and planning. Activities used to implement Phase II programs may
     be specifically charged to property owners on the tax duplicate. Periodic billing is
     another form and may prove economical if combined with other utility bills that
     cover the same service area. Other funding possibilities include permit and
     inspection fees done as connection (to the stormwater system) charges.

7.4.6. BENEFITS OF THE DISTRICT

     Because stormwater issues usually transcend political boundaries, county
     commissioners may enter into cooperative agreements with other counties,
     conservancy districts, municipalities and other boards to manage operation and
     maintenance of systems. This provides an economy of scale and, hopefully, better
     operation results. This could include drainage structures such as regional
     detention and retention facilities.

      A problem that is beginning to surface is the aging condition of infrastructure and
      related maintenance needs in areas managed by homeowners associations (HOA)
      or by individual property owners. For HOA maintained systems, assistance from
      the County Prosecuting Attorney will probably be needed to address the process
      for entering into agreements with the HOA for work in public easements for
      drainage not specifically dedicated to the County Commissioners.

7.4.7. EROSION CONTROLS - ORC 307.79

     A board of county commissioners may adopt rules establishing standards for
     management and conservation practices that will abate wind or water erosion of
     the soil or abate the degradation of the waters of the state by soil sediment in
     conjunction with land grading, excavating, filling, or other soil disturbing
     activities on land used or being developed for nonfarm commercial, industrial,
     residential, or other nonfarm purposes, and establish criteria for determination of
     the acceptability of those management and conservation practices.

     The rules shall be designed to implement the applicable areawide waste treatment
     management plan prepared under section 208 of the "Federal Water Pollution
     Control Act", 33 U.S.C. 1228, and to implement phase II of the storm water
     program of the national pollutant discharge elimination system established in 40
     C.F.R. Part 122. The rules do not apply inside municipalities or inside limited
     home rule townships that have adopted rules under ORC 504.21. Strip and
     surface mining is also exempt from the rules.




                                          14
     The rules may require persons to file plans governing erosion control, sediment
     control, and water management before clearing, grading, excavating, filling, or
     otherwise wholly or partially disturbing one or more contiguous acres of land
     owned by one person or operated as one development unit for the construction of
     nonfarm buildings, structures, utilities, recreational areas, or other similar
     nonfarm uses. No permit or plan is required for a public highway, transportation,
     or drainage improvement or maintenance project undertaken by a government
     agency or political subdivision in accordance with a statement of its standard
     sediment control policies that is approved by the board or the chief of the division
     of soil and water conservation in the department of natural resources.

7.5. DITCHES AND WATERCOURSES

     The ORC allows for private citizens, associations, public corporations, public
     institutions and governmental agencies to petition for a wide variety of
     improvements to surface and subsurface watercourses. The following is a brief
     overview of each of the petition methods provided for in the Code and how the
     County Engineer is involved with each process.

7.5.1. PETITION THROUGH THE BOARD OF COUNTY COMMISSIONERS-
       ORC Chapter 6131

     Owners of real property may file a petition with the Board of County
     Commissioners for improvements to any ditch, drain or watercourse. The
     petitioners must provide with the petition, a bond and list of effected landowners
     within the watershed. Many times the County Engineer assists with that listing to
     assure accuracy.

     Upon receipt of the petition and a bond, the Commissioners are required to notify
     every landowner claimed to be benefiting from the improvements and schedule a
     public viewing and preliminary hearing. At that hearing, it is the duty of the
     County Engineer to provide a preliminary cost estimate to solve the prayer of the
     petition with an opinion as to whether or not the project is feasible.

     If the project is approved at this hearing, the County Engineer is then charged
     with the preparation of plans and assessment determinations to the parcels being
     benefited within the watershed. The landowners are then notified of a second
     and final hearing.

     If approved by the Board of Commissioners at the final hearing, and not appealed
     through the court system (or if required by a final court decision), the County
     Engineer will be charged with preparing and advertising for bids, prepare contract
     documents and inspect the construction of the improvement.

7.5.2. PETITION DITCH MAINTENANCE - ORC Chapter 6137




                                          15
      Upon completion of the project, the Code provides for permanent maintenance of
      the improvement with the County Engineer being responsible for oversight of that
      maintenance and annual reporting to the Commissioners.

7.5.3. JOINT COUNTY AND INTERSTATE PETITION DITCHES - ORC Chapters
        6133, 6135

      ORC Chapter 6133 outlines joint county petition procedures and ORC Chapter
      6135 establishes guidelines for interstate drainage petitions.

      Bulletin 482, “The Ohio Drainage Laws Petition Procedure” published by the
      Ohio State University Cooperative Extension Service is an excellent
      informational handout to anyone involved in a drainage petition. See Appendix
      7-D.

 7.5.4. PETITION THROUGH THE COUNTY SOIL & WATER BOARD OF
        SUPERVISORS - ORC Chapter 1515

      This petition goes directly to the County Soil and Water Conservation District
      (SWCD) Board of Supervisors. All surveying, design engineering, preparation of
      plans and notification to landowners is performed by SWCD personnel.

      The ORC does require a public viewing and preliminary public hearing where the
      SWCD provides estimates for solving the prayer of the petition. SWCD is
      required to notify the County Engineer and Board of County Commissioners of
      the viewing and hearing and it is recommended the Engineer and Board (or their
      representative) attend. Should the SWCD Board recommend that the project
      proceed to a final public hearing, the County Engineer may be requested to assist
      with assessment determinations due to decisions the County Commissioners will
      make at the final hearing.

      At the final public hearing, the SWCD Board of Supervisors will approve or
      dismiss the project based upon the need for the improvement. If approved by the
      SWCD Board, the County Commissioners then have 60 days to approve or
      dismiss the project based upon the costs vs. benefits to the affected landowners.

      If approved by both boards and not appealed through the Courts, the project will
      go to bid through the County Commissioners Office with the SWCD personnel
      performing the inspection of the construction. The County Engineer may be
      asked to assist with bidding and contracting documents. After completion of the
      improvement, the project will be maintained under ORC 6137 which requires the
      County Engineer’s oversight.

      Also see Chapter 4, Intergovernmental Co-operation, 4.5.5., Soil and Water
      Conservation Commission and Districts




                                          16
7.5.5. GROUP AGREEMENT PROJECTS - ORC 6131.63

     Property owners may also establish a public watercourse through a general
     agreement among the effected owners.

     The benefiting property owners agree to the plan for the improvement and pay all
     associated costs. The construction of the project must meet standards adopted by
     the Board of County Commissioners.

     After the project has been completed and all costs paid, the owners can then
     provide to the Board of County Commissioners, a set of plans signed by a
     Professional Engineer with a listing of the individual assessments.

     The Commissioners may then pass a resolution approving the project, file the
     plans and assessments, and place the improvement under permanent maintenance
     as provide in ORC Chapter 6137.

7.6. CONSERVANCY DISTRICTS - ORC Chapter 6101

     Conservancy Districts are political subdivisions of the state formed at the
     initiative of local landowners or political subdivisions in order to solved local
     water management problems, usually flood control. Many of the Districts were
     formed to serve as the local sponsors for federal flood control projects. Other
     authorized purposes now include conserving and developing water supply,
     improving drainage, collecting and disposing of waste, providing for irrigation
     and arresting erosion on the Lake Erie shoreline.

     Each District is under the direct jurisdiction of a conservancy court. Each county
     within the district's territory appoints one common pleas judge to the court. The
     court appoints the district's board of directors and board of appraisers and
     approves its plans.

     In order to carry out a conservancy court approved work plain, the District will
     have the affected area appraised for the benefits received as a result of the
     improvements, and then levy special assessments and issue bonds.

     Projects that tend to work will with this method are: large creek and river
     restorations, detention areas for flood control, and improvements utilizing federal
     and state matching funds.

7.7. REMOVAL OF MILLDAMS - ORC Chapter 6155.

     Landowners can petition the Board of County Commissioners for the removal of a
     milldam which after a public viewing and hearing can be assessed to the
     benefiting parcels of land. ORC 6155 states that the only responsibility the




                                          17
       County Engineer has in these proceedings is to sell the project at public sale and
       supervise the work in removing the milldam.

7.8. COUNTY RECLAMATION - ORC Chapter 6156.

       The County Commissioners may create a county board of reclamation, which
       includes the county engineer, to decide which lands, public or private, to be
       reclaimed using county dredging equipment. ORC 6156 states that the County
       Engineer is to accept applications from landowners asking that the county
       dredging equipment be used to reclaim their land and oversees the work if the
       board so determines the work is to be done.

7.9. FLOOD PLAIN MANAGEMENT - ORC 6121.13-14, .18; OAC 4101:1-16-12.3,
       .5; "National Flood Insurance Act of 1968," 42 U.S.C. 4001-4129, 44 CFR 59-77.

       The Chief of ODNR’s Ohio Division of Water is responsible for the coordination
       of flood plain management activities of the state and local governments, including
       the National Flood Insurance Program. The Chief is to assist local governmental
       agencies with developing flood plain management programs.

       FEMA has developed flood plain maps for each county in Ohio and if a
       homeowner is to obtain federal flood plain insurance, or be able to build a
       structure in, or near the flood plain, the County Commissioners must first pass
       flood plain regulations that cover all the unincorporated areas of that county. The
       regulations appoint a Flood Plain Coordinator and provides for the establishment
       of a permitting process and construction standards for any construction in or near
       a flood plain. Municipalities must pass their own flood plain regulations in order
       to oversee any construction within a floodplain inside their corporation limits. In
       most counties, lending institutions providing funds to those homeowners wishing
       to build in or near a flood plain, have driven the need for that homeowner to apply
       for the proper permit from the Flood Plain Coordinator.

       The County Flood Plain Coordinators in Ohio, as appointed by the Board of
       County Commissioners have been any one of the following: The County
       Engineer; County Sanitary Engineer; County Building Inspector, County
       Regional Planning Director, County Drainage Engineer, or whomever the
       Commissioners so wish.

       The ODN Division of Water maintains detailed flood plain information on its
       website: http://www.dnr.state.oh.us/water/floodpln/.

       Currently, ORC 315.14 allows for the County Engineer to receive extra
       compensation if those duties are added to the position of Sanitary Engineer or
       County Drainage Engineer and the County Engineer holds those additional
       positions. See Chapter 1, The Office, Section 1.7.5.- Extra Compensation for
       Contracted Additional Duties.



                                            18
      If your County does not currently have flood plain regulations, it is suggested you
      either contact the Division of Water or other County Flood Plain Coordinators for
      sample resolutions/regulations that can be a basis for adoption in your county.

7.10. OTHER ENVIRONMENTAL IMPACTS

      The operations of the office of county engineer are subject to numerous and
      various environmental concerns. The following sections describe the major
      concerns but no list can be complete both because of the complexity of the issue
      and the constant addition of new regulations.

7.10.1. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) - 42 U.S.C. 4321 et
       seq.).

      Environmental considerations began to play an increasingly important role in
      transportation projects beginning in 1969 with the passage of the National
      Environmental Policy Act (NEPA). NEPA is the federal legislation which
      requires states to document the environmental impact of transportation projects.
      The NEPA process is enforced by regulations of the Council of Environmental
      Quality (CEQ). Depending on the scope of work and level of environmental
      impacts, each project will fall into one of the following classes of NEPA
      documents: Environmental Impact Statement (EIS), Environmental Assessment
      (EA), or Categorical Exclusion (CE) Level 1, 2, 3, or 4. Certain extremely simple
      projects involving no environmental impacts may be exempt from environmental
      documentation.

7. 10.2. PURPOSE AND NEED STATEMENT

      Every NEPA document requires a purpose and need statement. This statement is
      a written description of the transportation problem which the proposed project is
      intended to address. It explains why the expenditure of funds is necessary and
      worthwhile. It also explains the project’s importance so that the merit of the
      project can be weighed against environmental impacts. The purpose and need
      statement includes a brief discussion of issues such as system linkage, capacity,
      transportation demand, social demands or economic development, safety, and
      roadway deficiencies. A critical element of a purpose and need statement is a
      discussion of logical termini. The purpose and need statement should also
      demonstrate the problems that will result if the project is not implemented.

7.10.3. ECOLOGICAL RESOURCES - U.S. Clean Water Act of 1977, 33 U.S.C.
        Section 1251, et seq.

      Impacts to surface waters are regulated under the U.S. Clean Water Act of 1977
      (33 U.S.C. 1251). Below is a summary of surface water and other ecological
      resources that could potentially be impacted by a transportation project as well as
      a list of reports and agency coordination that could be required. For more detailed


                                          19
      information on the resources, the report requirements, and the agencies with
      jurisdiction over the resources, please refer to ODOT’s Ecological Manual:
      http://www.dot.state.oh.us/oes/eco_guide.htm

7.10.4. STREAMS, RIVERS, AND WATERCOURSES - ORC 6111.01-.08, OAC
        3745-1

      The level of coordination required for impacts to streams, rivers, and
      watercourses depends both on the quality of the waterway and the level of impact.
      Water quality in Ohio is defined in the State of Ohio, Water Quality Standards;
      Chapter 3745-1 of the Administrative Code. In addition, OEPA, FHWA, ODOT,
      ODNR), and the United States Fish and Wildlife Service (USFWS) have a signed
      Memorandum of Agreement (MOA) for Interagency Coordination for Highway
      Projects Which Involve Stream Crossings and/or Minor Wetland Fills. Most
      projects with minor waterway impacts will be covered by this MOA. Impacts
      must be summarized and included in an MOA package to ODNR and USFWS.
      The MOA package includes a project description, a description of impacts,
      project mapping, photos, and preliminary plan sheets. More extensive impacts
      may require four-agency coordination in which this information is sent to the
      Ohio Environmental Protection Agency (OEPA) and the U.S. Army Corps of
      Engineers (USACOE) in addition to USFWS and ODNR. Typically, these
      agencies have 30 days to send comments regarding the project. Comments
      usually include best construction practices and may limit the time of year in
      which work in the waterway may occur.

      If the waterway is large or of high quality, if multiple waterways are impacted, or
      if the impacts are extensive, an Ecological Survey Report (ESR) may be required.
      This is a detailed report which includes an assessment of water quality, aquatic
      species, wetlands, endangered species, and surrounding terrestrial species. It
      usually requires several days of field work and must be done by a pre-qualified
      consultant. Copies of the ESR will be coordinated by ODOT’s Office of
      Environmental Services with the resource agencies. Impacts resulting from
      projects that require ESRs typically require mitigation activities.

      In addition to coordination with the resource agencies, projects with impacts to
      streams, rivers, and watercourses require waterway permits. These permits are
      explained in Section 7.11. - Waterway Permits. Also see Section 4.5.2.9.3 -
      Waterway Permits and Cultural Resource Manuals:

7.10.5. SCENIC RIVERS - National Wild and Scenic Rivers Act, 16 U.S.C. 1271 et
         seq.; State Scenic Rivers ORC1517.14 to 1517.18

      Scenic Rivers can either be designated at a state or a national level. Projects
      involving scenic rivers typically require ESR level studies and impacts must be
      minimized. In addition to the coordination explained above for rivers, streams,
      and watercourses, coordination with other agencies is required for scenic rivers.



                                          20
      State Scenic Rivers are under the jurisdiction of ODNR-Division of Natural Areas
      and Preserves. It is advised to get the ODNR Scenic River Coordinator involved
      early in any project that has the potential to impact a state scenic river. For
      Scenic Rivers and ODNR Coordinators see Appendix 7-E. ODNR has the right to
      approve or disapprove any public project involving a state scenic river. While no
      specific permit is issued for state scenic rivers, ODNR issues a letter to signify
      that they have approved the project and proposed mitigation activities. The
      Division maintains information on its website at:
      http://www.ohiodnr.com/dnap/sr/

      National Scenic Rivers are covered under Section 7 of the National Wild and
      Scenic Rivers Act (16 U.S.C. 1278), and therefore require a Section 7
      Determination by the National Park Service (NPS). They are also protected under
      Section 4 (f) of the U.S. DOT Act of 1966 which protects public recreational
      resources See 7.16. - Public Lands Section 4(F) of the U.S.DOT Act of 1966.
      A Section 7 determination involves an assessment of the impacts of the proposed
      project, a demonstration of how the impacts will be minimized, and a discussion
      of proposed mitigation activities. Adverse impacts to national scenic rivers are
      not permitted. The NPS has the right to approve or disapprove any project on a
      National Scenic River. If the NPS determines that a project will have an adverse
      impact, it will have to be corrected before the final Section 7 Determination can
      be made.

7.10.6. NAVIGABLE WATERWAYS - Rivers and Harbors Acts, Section 10, 33
       U.S.C. 403; Section 9, 33 U.S.C. 401

      In addition to the ecological work and permits required for streams, rivers, and
      watercourses, navigable waterways require a Section 10 permit from the
      USACOE and commercially navigable waterways require a Section 9 permit from
      the U.S. Coast Guard. These permits are explained below in the Section 7.3. For
      a list of Navigable Waters of Ohio, see Appendix 7-F.

7.10.7. OTHER SURFACE WATERS

      Other surface waters that can be impacted by projects include resources such as
      reservoirs, lakes, farm ponds, detention/retention basins, and stormwater
      management facilities. As with streams and rivers, the type of coordination
      required depends on the quality of the resource and the level of impacts.
      Coordination can range from an MOA package up to an ESR. Most surface
      waters, even if privately owned, are under the jurisdiction of the Army Corps of
      Engineers (Corps). If a surface water resource is impacted by a project, a Corps
      permit will be required. Chapter 4, Intergovernmental Cooperation, Section 4.6.2.
      - U.S. Corps of Engineers.

7.10.8. WETLANDS



                                          21
     The protection of wetlands is as set forth in Presidential Executive Order 11990.
     Wetlands can either be considered isolated or non-isolated. A non-isolated
     wetland is one that is adjacent to, fed by, or is in some manner connected to a
     surface water resource. Conversely, an isolated wetland is separated from any
     surface water resource. Wetlands can fall within three categories based on their
     quality. A Category 1 wetland is of low quality whereas a Category 3 wetland is
     considered high quality. The wetland category is typically determined at the same
     time as the delineation of the wetland boundary. Efforts must be made to avoid
     wetlands. If avoidance is not possible, minimization must be demonstrated. If
     impacts to wetlands exceed 0.10 acre, mitigation activities are typically required.
     Impacts to wetlands also require waterway permits as described in Section 7.10.8.
     - Wetlands.

7.10.9. TERRESTRIAL HABITAT

     Unless a transportation project is confined to existing pavement or an existing
     structural component, it will impact some type of terrestrial habitat. Many
     projects involve low-quality terrestrial habitat which includes mowed grass and
     scrub brush within the roadway right-of-way. Occasionally projects may impact
     high quality terrestrial habitat which can include mature forests and rare or
     endangered species. A discussion of terrestrial habitat is included with an MOA
     package or Ecological Survey Report.

7.10.10. THREATENED AND ENDANGERED SPECIES (16 U.S.C. 1530-1543).

     Protection of Endangered Species is addressed in Section 7 of the Endangered
     Species Act, as amended. In the MOA package or Ecological Survey Report, it
     must be stated if a project is within the known range of any federally-listed or
     state-listed threatened or endangered species. If any endangered species were
     identified in the project area, they must be listed in the report along with a
     discussion of anticipated impacts. Impacts to any endangered species must be
     coordinated with the USFWS. If impacts to these species are unavoidable,
     USFWS may require that the species be relocated or that mitigation be performed.

     Every county in Ohio is within the known range of the federally endangered
     Indiana Bat. This means that every transportation project will require
     consideration of Indiana Bat habitat. Winter, or hibernating habitat, of the
     Indiana Bat includes caves, caverns, and mines. Summer, or brood-rearing
     habitat, of the Indiana Bat includes living or standing dead trees or snags with
     exfoliating, peeling or loose bark, split trunks and/or branches, or cavities. The
     brood-rearing season is typically considered between April 15th and September
     15th. Most often, if trees within a project area are cleared before April 15th or
     after September 15th, when the species would not be using such habitat, no further
     mitigation activities are required. In some cases, when tree-cutting cannot be
     performed outside the brood-rearing season, a mist-net survey may be required by



                                         22
      USFWS. Consultants who are qualified to perform these surveys are rare, thus
      these surveys are quite expensive. It is advisable to remove trees within the dates
      specified by USFWS to avoid mist-net surveys when possible.

7.11. WATERWAY PERMITS

      There are a variety of waterway permits that could be required for a project
      depending on the type and quality of the resources and the level of impacts. It is
      critically important for a County Engineer to inform contractors of all permits
      issued for a project. Typically the bid documents should include a notice that
      contractors must comply with all permit provisions and environmental
      commitments. Below is a summary of resource agencies and the types of permits
      they issue. For a more detailed description of the agencies and permits, please
      refer to ODOT’s Waterway Permits Manual:
      http://www.dot.state.oh.us/oes/permits_manual.htm

7.11.1. Nationwide Permits - 33 CFR Part 330

      The U.S. Army Corps of Engineers (Corps) has jurisdiction over all waters of the
      U.S including streams and non-isolated wetlands. They have established 44
      Nationwide Permits that can be issued for projects with minimal adverse effects to
      these waters (USACOE, Public Notice No. CEORP-or 97-NWPI; Nationwide
      Permits for the State of Ohio: Corps of Engineers Regulatory Program,
      Reauthorization of the Nationwide Permits). Each Nationwide Permit has a list of
      conditions that must be followed for the permit to be valid. The criteria for
      Nationwide Permits can be found on the website from the Huntington District of
      the Army Corp of Engineers at: http://www.lrh.usace.army.mil/permits/. Also see
      Chapter 4, Intergovernmental Co-operation, Section 4.6.2. - U.S. Corp of
      Engineers.

7.11.2. Pre-Construction Notification (PCN)

      In some instances, a project falls under a Nationwide Permit but a provision in the
      permit indicates that the Corps must be notified. In this case, a PCN is prepared
      and submitted to the Corps. The PCN requires a description of the project,
      locational mapping, construction drawings, drawings indicating the waterway
      impacts, and a list of previous agency coordination. The Corps will evaluate the
      PCN and determine if it falls under a Nationwide Permit. If the impacts exceed
      the threshold for a Nationwide Permit, an Individual 404 Permit will be required.
      A PCN Application can be found in at the Corps website at:
      http://www.lrh.usace.army.mil/permits/.

7.11.3. Individual 404 Permit

      An Individual 404 Permit is so named because it is addressed in Section 404 of
      the U.S. Clean Water Act of 1972 (as amended 1977). The 404 permit



                                          23
       application is submitted on the same form as the PCN; however, it requires a
       much more detailed discussion of the aquatic resource and impacts to the
       resource. If an Individual Permit is required, a copy of the Ecological Survey
       Report would have already been sent to the Corps for review as a part of the
       ecological coordination required for the environmental document.

7.11.4. 404/401 Permit

       If an Individual 404 Permit is required, a 401 Water Quality Certification from the
       Ohio EPA is almost always required as well. The permits can be submitted as a
       combined 404/401 permit, but OEPA can not act on the 401 permit until the
       Corps issues a 404 public notice. Once that is done, OEPA can evaluate the
       application, send out a public notice, and then issue the 401 permit. The Corps
       cannot issue the 404 permit until the 401 Water Quality Certification has been
       issued. For this reason, these permits tend to require six to nine months to obtain.

7.11.5. Section 10

       The Corps is also responsible for issuing Section 10 permits, covered under
       Section 10 of the Rivers and Harbors Act of 1899. These permits are needed for
       any Section 10 navigable waters, and they are submitted as a PCN. A list of
       Section 10 navigable waters in Ohio can be found in ODOT’s Waterways Permit
       Manual. The Corps does not actually issue a specific permit, but instead notifies
       the US Coast Guard who in turn issues a notice to navigation.

7.11.6. US COAST GUARD SECTION 9 BRIDGE PERMIT

       The US Coast Guard Section 9 permit is required for all projects involving new
       bridges or the reconstruction of bridges over commercially navigable waters. The
       Coast Guard must ensure that the horizontal and vertical clearances are adequate
       for navigation. To obtain a Section 9 permit, the completed environmental
       document (EIS, EA, or CE), the 401 Water Quality Certification, and the 404
       Permit must be submitted to the Coast Guard. Also see Chapter 4,
       Intergovernmental Co-operation, 4.6.3. - U. S. Coast Guard.

7.12. OHIO ENVIROMENTAL PROTECTION AGENCY SECTION 401 WATER
       QUALITY CERTIFICATION

       As described in Section 7.11.4., a 401 Water Quality Certification from the Ohio
       Environmental Protection Agency (OEPA) is generally required for any project
       that requires an Individual 404 permit from the Corps. There is a standard
       application form for a 401 permit that is divided into 11 sections including a
       discussion of other permits obtained, a project description, the purpose and need
       for the project, and a discussion of alternatives. The alternatives discussion
       requires a detailed analysis of the preferred alternative, the minimum-degradation
       alternative, and the non-degradation alternative. The permit application is



                                           24
      typically submitted jointly with the 404 permit application. It requires a public
      comment period, and it averages seven months to obtain.

7.13. OHIO ENVIROMENTAL PROTECTION AGENCY SECTION ISOLATED
       WETLANDS PERMIT - ORC 6111.021-.029, 3745.113; OAC 3745-1-50 to
       3745-1-54

      The OEPA is also in charge of issuing permits for isolated wetlands (which are
      not under the jurisdiction of the Corps). If it cannot be readily determined
      whether the wetland is isolated or non-isolated, the Corps will need to perform a
      jurisdictional determination. Category 1 and 2 isolated wetlands are subject to
      one of three levels of review by OEPA depending upon the level of impacts. A
      level one review is the lowest level. It requires the preparation of a Pre-Activity
      Notice (PAN) and mitigation proposal, and it results in the issuance of a General
      Isolated Wetland Permit. A level two or three review requires the submission of a
      PAN, a limited or detailed alternatives analysis, and a mitigation proposal, and
      results in an Individual Isolated Wetland Permit.

7.14. DRINKING WATER RESOURCES

      If a community drinking water resource is located in the project area, the potential
      for impacts must be determined. Maps of drinking water resources can be
      obtained from OEPA. If the project is within a source water protection area,
      coordination with the local operator or owner is required. If the project is located
      over a sole source aquifer but qualifies as a categorical exclusion, no coordination
      or special analysis is normally required. However, if the project has the potential
      to impact the aquifer, a detailed discussion is required. Impacts to water
      resources are typically handled by a plan note for the control of any spills that
      could occur during construction that have the potential to contaminate a drinking
      water resource.

7.15. FARMLAND - Farmland Protection Policy Act, 7 U.S.C. 658, 7 CFR 658

      If any new right-of-way is required for a project, one of two documents is
      required to satisfy the requirements of the Farmland Protection Policy Act
      (FPPA). If the project is located in a well-developed urban area or if the amount
      of right-of-way required meets a threshold limit for the type of project, ODOT’s
      FPPA Screening Sheet is all that is required. If the threshold limit for the type of
      project is not met or if the right-of-way needed is 10% or 10 acres (whichever is
      greater) from an individual property within a protected area such as an
      agricultural district , the preparation of a Farmland Conversion Impact Rating
      (FCIR) form is required. The FCIR form is coordinated with the local office of
      the Natural Resources Conservation Service (NRCS).

7.16. PUBLIC LANDS SECTION 4(F) OF THE U.S. DOT ACT OF 1966 - 49
       U.S.C. 303



                                           25
     Section 4(f) provides for the protection of publicly-owned parks; recreational land
     such as schools, state/national forests, bikeways, and recreational trails; wildlife
     refuges and preserves; and natural preserves. It applies to National Scenic Rivers,
     and it also applies to historic buildings, structures, districts, and archaeological
     sites that are on or eligible for the National Register of Historic Places, even if
     they are privately owned. As with other environmental resources, Section 4(f)
     resources should be avoided to the extent practicable. If avoidance is not
     possible, measures must be taken that minimize impacts. If impacts occur,
     mitigation may be required. Below is a brief summary of the types of Section 4(f)
     coordination that may be required. For detailed information please see ODOT’s
     Section 4(f) Manual: http://www.dot.state.oh.us/oes/section_4(f).htm

     FHWA is responsible for making Section 4(f) determinations on federal projects.
     If the use of the Section 4(f) resource is only temporary, such as the closure of
     bikeway under a bridge during replacement of the bridge, or the temporary use of
     strip right-of-way during a roadway construction project, no coordination with
     FHWA is required. The official with jurisdiction over the resource must agree in
     writing that the temporary use will not cause any permanent adverse impacts to
     the resource. The resource must also be returned to equal or better condition than
     before the temporary use began.

     For certain levels of impacts to Section 4(f) resources, one of four Programmatic
     Agreements may apply. The first agreement is for minor involvement with public
     parks or recreational areas. The second is for projects that necessitate the use of
     historic bridges, the third is for minor involvement with historic sites; and finally
     there is a negative declaration for independent bikeway or walkway construction
     projects. Concurrence from the agency with jurisdiction over the resource is
     required, and it must be submitted to FHWA along with other supporting
     documentation for approval.

     If none of the programmatic agreements apply, an individual Section 4(f)
     document is required. This document must demonstrate that there are no feasible
     or prudent alternatives that would avoid use of the Section 4(f) resource. The
     document and proposed mitigation not only requires review and concurrence by
     the agency having jurisdiction over the resource but also by the Department of the
     Interior (DOI). Once the document is completed (including the DOI
     concurrence), it is submitted to FHWA for Section 4(f) approval.

7.17. SECTION 6(F) OF THE LAND AND WATER CONSERVATION ACT - 16
       U.S.C. 460L-4 to 460L-11

     Section 6(f) applies to any land that was purchased or improved with Land and
     Water Conservation Funds. No permanent impacts to Section 6(f) lands can
     occur without the approval of the Secretary of the Interior. Section 6(f) impacts
     require all of the coordination that is required for Section 4(f). In addition if



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     Section 6(f) land is needed for a project, it is required that an equal piece of land
     of reasonable equivalent usefulness and location be substituted in its place. The
     substitute land must be obtained from a willing seller. It cannot be obtained
     through eminent domain. Typically it takes a great deal of time to find
     appropriate land for substitution and coordination with the Secretary of the
     Interior can also take months. For this reason, avoidance is typically the option of
     choice, so Section 6(f) coordination is extremely rare.

7.18. SECTION 106 OF THE NATIONAL HISTORIC PRESERVATION ACT -
       16 U.S.C. 470 (f)

     The two main areas of Section 106, commonly referred to as cultural resources,
     are history/architecture and archaeological. Section 106 applies to the use of land
     of a historic site of national, state, or local significance as determined by the
     officials having jurisdiction. Privately owned resources can still be protected
     under Section 106. If the site is listed or eligible for listing on the National
     Register of Historic Places, it is also protected under Section 4(f) and the
     appropriate documentation must be prepared as explained in Section 7.16. A
     complete explanation of Cultural Resource requirements can be found in ODOT’s
     Cultural Resources Manual: http://www.dot.state.oh.us/oes/forms.htm

     If a Section 106 resource is present, avoidance alternatives must be evaluated. If
     the resource cannot be avoided, efforts to minimize harm must be made. If the
     resource is adversely impacted, mitigation will be required. The first step in
     identifying the presence of a Section 106 resource is a Phase I Literature Review.
     If a resource is present, a Phase I and/or Phase II History/Architecture Survey or
     Archaeological Survey may be required. These must be performed by a pre-
     qualified consultant. These reports involve field work to identify types, locations,
     and quality of potentially historic resources in the project area. All Phase I and
     Phase II reports require coordination with the Ohio State Historic Preservation
     Office (SHPO) which is part of the Ohio Historical Society.

     SHPO will make one of three determinations for a project and its associated
     impact on a historic resource. The determinations include “no historic properties
     affected,” “no adverse affect,” or “adverse affect.” If an “adverse affect”
     determination is made, Documentation For Consultation (DFC) will need to be
     prepared. DFC explains the process that was used to identify the historic
     property; a description of the historic property; the impact that the project will
     have on the property; efforts to avoid, minimize and mitigate impacts; and efforts
     to identify and coordinate with consulting parties. Consulting parties typically
     consist of property owners in the vicinity of the project, local historic societies or
     groups, individuals with interest in or associated with the historic resource, the
     project sponsor, ODOT, SHPO, and FHWA. If the historic resource is associated
     with a Native American Indian tribe, tribal coordination is also required. The
     DFC will also contain a Memorandum of Agreement which stipulates the




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      mitigation requirements. This agreement must be signed by all interested parties
      before it can be fully executed.

      If a historic resource will be removed for a project, one typical mitigation measure
      is the requirement to complete a Historic American Buildings Survey (HABS) or
      a Historic American Engineering Record (HEAR) report. These reports are of
      archival quality and fully document the historic resource to be removed. They
      must be prepared in accordance with the Secretary of the Interior standards and
      guidelines, and they are sent to and archived at two libraries within the State of
      Ohio. Another typical mitigation measure is the requirement to erect a
      commemorative plaque at the site of the historic resource. In the case of an
      archaeological site, a data recovery plan may be implemented during construction
      activities.

7.19. AIR QUALITY [CLEAN AIR ACT AMENDMENTS OF 1990 - 42 U.S.C.
       7400

      If a project is located outside of an air quality non-attainment or maintenance
      area, it is exempt from an air quality conformity analysis. Projects within an air
      quality non-attainment or maintenance area require a conformity analysis. Non-
      attainment and maintenance areas are the areas within the boundaries of
      Metropolitan Planning Organizations (MPOs). All projects in these areas are
      included in the MPO’s Transportation Improvement Program (TIP), and an air-
      quality conformity analysis is performed for the entire TIP. The TIP must
      conform to air-quality standards as established by the OEPA.

7.20. NOISE - 23 U.S.C 109 (i), 23 CFR 772, FHWA NOISE ANALYSIS
       GUIDANCE, 1995

      A noise analysis is required if a project is constructed on new location, if the
      existing alignment is significantly altered, or if the project adds capacity (through-
      lanes) to an existing roadway. The analysis serves to identify existing and
      potential noise sensitive receptors in the project area, demonstrate existing noise
      conditions, determine future projected noise conditions if the project is not built,
      determine future projected noise conditions if the project is built, and compare the
      existing conditions to the proposed conditions for both the build and no-build
      scenarios. Existing and future noise levels are determined through the use of
      computer modeling. If a noise impact, as defined by FHWA, is projected to occur
      then noise abatement measures, as listed in 23 C.F.R. 772, must be considered.
      Abatement measures include but are not limited to vegetation, traffic
      management, horizontal or vertical alignment modifications, interconnecting
      signals, and noise barriers.

7.21. COMMUNITY IMPACTS & ENVIRONMENTAL JUSTICE




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    The impacts of transportation projects on a community and its quality of life must
    be addressed as part of the environmental process. Most minor projects have only
    temporary impacts to a local community. Other projects may impact a
    community by removing an important local community center or severing access
    to fire, police, and other emergency services. A project may also cause changes
    to the existing land use or cause rapid growth in a project area. If an adverse
    impact to the local community will occur, avoidance, minimization, and
    mitigation alternatives should be identified.

    Environmental Justice, as set forth in Presidential Executive Order 12898, is
    another area that must be addressed. Environmental Justice promotes
    nondiscrimination in federal programs affecting human health and the
    environment. Minorities and low-income populations must be considered in
    transportation planning. To do this, a project area must be researched to
    determine if minority and low-income populations are located in the project area
    and if so, where. This can be done by consulting with stakeholders in the
    community and by researching census data. If minority or low-income
    populations are within the project area and an impact occurs, it must be
    demonstrated that there are no disproportionately high adverse human health or
    environmental effects on these populations. If an adverse impact occurs to these
    populations, the need for the project must be substantiated based on overall public
    interest. See ODOT’s Environmental Justice Guidelines:
    http://www.dot.state.oh.us/oes/env__justice.htm

7.22. HAZARDOUS MATERIALS

    The presence of hazardous materials and regulated substances in a project area
    can be determined through Environmental Site Assessments (ESA). ESAs must
    be performed by a pre-qualified consultant and must be conducted according to
    ODOT’s ESA Guidance Manual:
    http://www.dot.state.oh.us/oes/ECOESA/esagui~1.pdf

    The first phase in the ESA process is the preparation of an ESA Screening. The
    screening is conducted on all properties within a project area with the purpose of
    identifying any parcels with known or suspected hazardous material
    contamination.

    Depending on the results of the screening and the amount of work required on an
    individual property, further ESA work could range from none required to a Phase
    II ESA. If no further work is required but there is a chance for encountering
    contaminated soils during construction, a note can be included in the construction
    plans for the proper removal, testing, and disposal of petroleum contaminated
    soils should they be encountered. A Phase I ESA consists of a review of the
    historic ownership of the property, past and current land uses, physical
    characteristics of the property, and the preparation of a photo-log. If the Phase I
    reveals the potential for contamination on a property, depending on the right-of-



                                        29
      way needs from that property and the type of construction work to be performed
      on that property, a Phase II ESA may be required. The Phase II involves field
      sampling of the property. The samples are then sent to a lab for further analysis.
      If a property is found to be contaminated, it may be suggested to avoid this
      property during construction activities. If the property cannot be avoided,
      remediation may be required.

      Remediation could consist of removing and disposing of an underground storage
      tank and any contaminated soils associated with the tank according to BUSTR
      regulations, or it could be as complex as hiring a hazardous material response
      team to remove, test, and dispose of enough of the contaminated soils on the
      property such that only soils with an acceptable level of contamination remain.
      Disposal of contaminated soils is often quite costly. Therefore, remediation is
      avoided where possible due to both cost and potential for liability.

      For spills of oil and other hazardous material and hazardous material situations,
      immediately contact the county emergency planning agency and the local fire
      department. In addition certain spills and emergency situations are required to be
      reported immediately to the Ohio EPA’s Emergency Response (ER) Unit. ER
      operates a Spill Hotline with On Scene Coordinators available to respond,
      investigate, and oversee emergency cleanup activities 24 hours, 7 days a week at
      1-800-282-9378.

      ORC 3750.06 requires notification of spills or releases of oil or hazardous
      materials within 30 minutes of discovery. Notification is to be made to the fire
      department, local emergency planning agency and the Ohio EPA. Some releases
      may also be required to be reported to the US Coast Guard National Response
      Center (NRC) at 1-800-424-8802.

7.23. ASBESTOS - ORC 3704.03, ORC 153.15, OAC 3745-20, 40 CFR 61, Subpart M)

      For projects that require the removal of buildings or bridges, asbestos inspections
      may be required. The inspection must be performed by a Certified Asbestos
      Hazard Evaluation Specialist (CAHES) certified by the Ohio Department of
      Health. If asbestos is found and can be kept non-friable, a plan note may be
      required for the proper removal of the asbestos during construction. If the
      asbestos may become friable, asbestos abatement will likely have to be performed
      prior to demolition activities. Asbestos coordination is conducted through the
      OEPA regional office. Information and forms are available on the Ohio EPA
      webpage at http://www.epa.state.oh.us/dapc/asbestos.

7.24. UNDERGROUND PETROLEUM STORAGE TANKS - ORC 3737.87-.98,
       OAC 1301:7-9, OAC Chapter 3737

      Underground storage tank systems that contain petroleum or other hazardous
      substances are regulated by the Bureau of Underground Storage Tank Regulations



                                          30
     (BUSTR) in the State Fire Marshal’s office in the Ohio Department of
     Commerce. BUSTR administers the federal underground storage tank and
     leaking underground storage tank programs in Ohio under a cooperative
     agreement with the United States Environmental Protection Agency. Locations
     where regulated tanks are located must be annually registered with BUSTR.
     BUSTR also regulates the cleanup of release of petroleum into the environment
     through its corrective action process.

     Compliance Guidance Documents and Corrective Action Guidance Documents
     are available from BUSTR. See BUSTR webpage at
     http://www.com.state.oh.us/sfm/bust/.

     Claims for the cost of corrective actions resulting from a release of regulated
     petroleum substances from underground storage tanks may be paid from the
     Financial Assurance Fund administered by The Petroleum Underground Storage
     Tank Release Compensation Board, an independent state board.

7.25. PUBLIC INVOLVEMENT

     Public involvement activities are required for all projects. For a complete
     description of public involvement requirements, see ODOT’s Public Involvement
     Manual: http://www.dot.state.oh.us/oes/public_info_.htm.

     Most often public involvement consists of sending letters to property owners
     within the vicinity of the project explaining the project and impacts to their
     property, if any. Other commonly used public involvement activities include
     articles in the local newspaper and postings on a community website. If a project
     is considered major, if it has a number of impacts or an adverse impact, or if it is
     controversial, it may be advisable to conduct a public involvement meeting or a
     series of public involvement meetings. If the project requires the preparation of
     an EIS or EA (or in some instances a CE with significant impacts), a public
     hearing is required. However, FHWA can require a public hearing on any federal
     project. A public hearing is a legal proceeding which provides a formal record for
     public involvement. Letters of invitation must be sent to project stakeholders, and
     legal notices must be published in the local newspaper at least once per week in
     the two weeks prior to the meeting. Comments are welcomed from the public,
     government officials, and agencies.




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