Ohio Public Works Clean Ohio Advisories

This material serves to provide policy and guidance for the Clean Ohio Greenspace Conservation Program. Any questions should be directed to the OPWC.

Access and Architectural Barriers Act

The Architectural Barriers Act (ABA) contains the most currently available information regarding the accessibility of trails. There is an important distinction between trails, shared use paths, and sidewalks, all of which have a different set of accessibility standards that apply.  Trails are described in the ABA and shared use paths and sidewalks fall under a similar category but have a separate set of ABA rules.

 

Application Types

Open Space – Open space acquisition and/or related development of those open spaces, including the acquisition of easements. This includes acquisition of land or rights in land for parks, forests, wetlands, natural areas that protect an endangered plant or animal population, other natural areas, and connecting corridors for natural areas. Related development projects include projects for the construction or enhancement of facilities that are necessary to make the acquired open space area accessible and useable by the general public. An application can be made for acquisition only, acquisition and related improvements, or for improvements only on properties previously acquired through Clean Ohio. Eligible improvements include trails, pedestrian bridges, observation decks, kiosks/signs, benches, trash receptacles, invasive species removal (one time), parking lots, restoration, and fencing.

Riparian Corridor – Protection and enhancement of riparian corridors or watersheds, including the protection of streams, rivers, lakes, and other bodies of water. Projects may include reforestation of land or planting of vegetation for filtration, and fee simple acquisition or acquisition of easements for providing access, or for protection and enhancement.

 

Application / Project Location

Application should be made to the NRAC where the project is located. 

Appraisals

The OPWC requires an appraisal for any property included as part of a Clean Ohio project, whether fee simple or as a conservation easement. OPWC’s Standards and Procedures must be followed to properly account for this requirement.

Compensatory Mitigation

Compensatory Mitigation refers to the restoration, establishment, enhancement, or in certain circumstances preservation of wetlands, streams or other aquatic resources for the purpose of offsetting unavoidable adverse impacts.  In some instances, public entities and non-profit organizations can seek approval to collect payments from permit applicants and consolidate those funds in order to conduct wetland and stream restoration activities in those same watersheds. Such projects are selected and undertaken with careful review by a team made up of federal and state agencies that jointly oversee mitigation programs and projects, including the Army Corp and the Ohio Environmental Protection Agency, using a variety of considerations including the likelihood of long-term success and the ability to permanently protect aquatic resources.

Protected Clean Ohio properties are suitable for these efforts but with the following stipulations. First, mitigation money cannot be used as local match for Clean Ohio Funds. Second, Clean Ohio Funds cannot generate mitigation credits for the preservation of the land or associated water resources since the state is paying for/or has paid for the land acquisition and protection and mitigation funds cannot be used as part of the match. Lastly, projects cannot conflict with the Clean Ohio statutory hydromodification prohibition. OPWC can, on a case by case basis, determine if any suggested mitigation work on a Clean Ohio purchased property is a good project.

Consulting Fees

If the Commission has determined that the scope of services and/or the associated fees are not clearly indicated, the engineer of record will be asked to clarify services with their fees. Administrative costs for application and disbursement preparation are ineligible.

Contingency Line Item

If the Commission's Project Agreement with the local subdivision contains a contingency line item it may be used to resolve construction site problems which result in unforeseen but necessary and legitimate construction expenses. The Commission may request documentation it considers appropriate, including the subdivision's agreement with the consulting engineer.

Deed Restrictions

The OPWC requires that its deed restrictions be placed upon and recorded for all acquired property, easements, and property upon which improvements are made. Deed restrictions are enforced.

Disbursements

The Commission will pay eligible project costs at its percentage rate per the Project Agreement up to the total amount of grant assistance. Applicants should be prepared to meet their local share requirements at all stages of the project. At the discretion of the Commission, the percentage rate can be adjusted during the disbursement process but must be met prior to or by project close-out. Disbursement documentation must include detailed invoices. Payment may be made directly to the vendor or as reimbursement to the subdivision if the invoice is accompanied by proof of payment.

The Commission can only disburse funds for eligible project costs that are included in the project’s scope of work as defined in the Project Agreement. Changes to the scope of work, including significant change orders, are the sole responsibility of the subdivision unless the District has approved a request to amend the scope.

The final disbursement request also serves as the project completion report. A separate statement of completion is not necessary if the final disbursement request indicates project completion. After the Commission is notified that a project is completed it will provide a summary of all disbursement activity.

Eligible / Ineligible Items

The Clean Ohio Greenspace Conservation Program is focused on environmental conservation. This means that projects and project components are for the preservation, protection, or restoration of the natural environment, natural ecosystems, vegetation and wildlife. Therefore, items that do not lend themselves to conservation are generally not allowable under this program. Improvements are meant to provide access with minimal impact to conservation values.

See list of eligible and ineligible items here.
 

Farmland Preservation

The OPWC is without authority to approve grant projects for the primary and express purpose of protecting land for continuing agricultural purposes. From a practical standpoint a project may contain agricultural land that would: 1) be allowed to revert to its natural state; 2) serve as a buffer for a riparian corridor; or 3) that could be used for the demonstration of historical farming. Applications containing active farmland in production or for grazing of livestock must include a timely exit strategy. Clean Ohio funds may be used to buy out a farm lease as a right in land.

Forest Management Practices

An untended, poorly managed forest eventually produces disease, insects, and overcrowding. Proper administration is needed to provide a forest with sunlight, water, critical nutrients, and healthy wildlife habitat. The Ohio Public Works Commission encourages recipients of Clean Ohio funds for land acquisition to develop forest management plans. Such plans, typically written for a ten-year period, provide for methods to maintain or improve forest health, sustainability, and productivity. For this reason, harvesting methods and techniques may be used on Clean Ohio protected properties if done so in a manner that is scrupulous, responsible, and well managed. Harvest methods, including even-aged and uneven-aged systems each have benefits and drawbacks so must be taken into consideration depending on the situation. Any revenues from timber harvesting are required to be used for maintenance and management of the property.

Forest management plans are required to be developed by a professional forester certified by the Society of American Foresters. The Society’s Certification Program ensures that foresters are vested in education and experience, providing the knowledge and skills necessary for proper forest management that adhere to standards of professional practice. Even if the organization that owns and manages the Clean Ohio protected property does not have an existing forest management program, a Certified Forester is required to administer any harvests. For assistance in locating a Certified Forester, see https://www.eforester.org/Main/Certification/Find_a_Certified_Professional.aspx?WebsiteKey=0605da36-47de-48f7-b626-a9e9d693e2ad.

Hydromodification

Projects shall not initiate or perpetuate hydromodification such as dams, ditch development, or channelization. The "project" is that which is defined by the scope in the Project Agreement.

 

Land Acquisition Disbursement

Applicants have two options for payment for property. Applicants may either choose to have funds released to a title agency prior to closing (pre-closing option) or be reimbursed after closing. However, neither option can take place without the submission and approval of the Request to Proceed, and the release of the Notice to Proceed.

  • Pre-Closing Option: The Disbursement Request must indicate the name of the Title Agency and be provided at least 30 days prior to closing. Funds will then be released to the escrow account to be held for closing. Any interest that accrues is to be used for settlement costs or, if in excess, will be applied to the cost of the project. If the closing is not held within 30 days of the disbursement, then the OPWC should be contacted immediately. Within 60 days of closing, the applicant, or the Title Agent on behalf of the applicant, must provide to the OPWC copies of the recorded deed/conveyance instrument, recorded deed restrictions, and executed settlement statement.
  • Reimbursement Option: After a Request to Proceed has been approved and a Notice to Proceed has been issued, the applicant may submit a Disbursement Request asking to be reimbursed for acquisition and other eligible costs. The submission should include copies of the recorded deed/conveyance instrument, recorded deed restrictions, and executed settlement statement.

Life Estate

Life estates are permitted in which the original landowner (seller) has occupancy rights limited to their lifetime (referred to as the “life tenant”). 

Local Match

The local match is all non-OPWC funds. It can consist of other agency funds (federal, state, or local) or local “pre-paids” for engineering or in-kind work (labor, equipment, materials). Pre-paids, costs paid by the recipient prior to the Project Agreement, may either be reimbursed (up to one year prior to the date of the Agreement) or credited toward the local match.

See OPWC In-kind Instructions for more information.

Long Term Ownership and Control

Properties or rights in properties obtained with Clean Ohio funds are required to remain in the long-term ownership, or long-term control through lease or purchase of an easement of the grant recipient. A request to transfer ownership and control must be made in writing to the OPWC Director.

Meeting Attendance

Any NRAC member who fails to attend at least three-fifths of meetings for any two-year period forfeits their position on the Council. NRACs are responsible for meeting minutes, attendance monitoring, and notification of forfeiture.

Mineral Rights / Oil

Oil and gas leases in place at the time the Natural Resources Assistance Council approves the project will be treated as pre-existing easements which the applicant has little or no control. Requests to engage in new oil and gas leasing on Clean Ohio properties will be denied. 

Minority Business Enterprise (MBE)

On OPWC-funded projects a percentage, as specified in ORC 125.081, of local subdivision direct contracts for procurement of equipment, materials, and supplies must be made from state certified MBE vendors.

NRAC Administration Costs

NRACs may choose to bill against their program fund allocation for costs incurred in administering the Clean Ohio Conservation program. Each NRAC may receive up to $15,000 per program year. Reimbursement is permitted for those costs directly incurred as a result of the need for labor, materials, supplies, equipment, travel and support services to perform the committee's statutory requirements. The NRAC must approve participation in this program. Each NRAC making this election must prepare an annual work plan and budget outlining the administrative costs to be provided and designate the entity providing these services. Approval by the NRAC must be documented in its meeting minutes and supplied with this material.

NRAC Methodologies

NRACs are required to allow a minimum of sixty days from the Commission’s approval of their respective project selection methodologies to accept applications. If methodologies remain unchanged, the Commission must be notified accordingly. Information should be submitted with the annual program schedule.

NRAC Nominations

A Natural Resource Assistance Council is established in each of the 19 districts per ORC 164.21. Each NRAC consists of 11 members of which one must be a member of the appointing integrating committee and one must represent a soil and water conservation district located within the geographical jurisdiction of the NRAC. Members’ terms of office are three years, with each term ending on the same day of the same month as did the term before it, except that the term may not extend beyond their terms as an elected or appointed official.

Members may be reappointed and must be filled in the same manner as the original appointment. Any member filling a vacancy holds the position for the remainder of that term. A member continues in office subsequent to the expiration date of the term until the member’s successor takes office or until 60 days has elapsed, whichever is first. Appointments and reappointments must be approved by the district integrating committee. District committees are responsible for coordinating the appointment process in their respective districts and informing the Commission of appointments. Appointing authorities are encouraged to make their appointments prior to the expiration of the term of the incumbent appointee(s).

For the appointment of each new member the district must provide a letter from the appointing authority, a nomination form, and a resume or summary of qualifications. For a reappointment only the letter from the appointing authority is required. For the district integrating committee appointment only meeting minutes are required, however, meeting minutes are also required to confirm all other appointments and reappointments.

Ref: ORC 164.21 

Open Meeting Requirements

Natural Resource Assistance Councils are public bodies and therefore subject to Open Meeting laws as defined by section 121.22 of the Ohio Revised Code (as part of Ohio's "Sunshine Laws"). All meetings must be open to the public at all times. Teleconferencing and videoconferencing are prohibited as a member must be present in person to vote, deliberate, or to be counted in a quorum. A quorum is six members regardless of vacancies.

The NRAC liaison must make public notice of the meeting at least 72 hours in advance of the scheduled meeting. Public notice consists of the day, time, place and purpose of the meeting and must be made orally, or in writing, to all members of the public body and to any person, or the news media, requesting notification. Full and accurate meeting minutes which permit the public to understand and appreciate the rationale behind the public body's decisions must be promptly prepared, filed, and maintained and be open to public inspection.

OPWC Project Signs

Signage is not required on an OPWC-funded Clean Ohio project. However, if a grant recipient elects to erect signage then the sign must, at a minimum, contain the Green Space Conservation logo.

See Clean Ohio Project Sign information here.

Post-Acquisition Activity / Site Improvements

Proposed site improvements can either be included in the application for property acquisition or in a future application following property acquisition. If included with property acquisition, site improvements must be concluded within a two-year period from the date of acquisition. If in a separate application, improvements must be concluded within a two-year period from the date of the Project Agreement.

Prevailing Wage and Other Bidding Requirements

The OPWC requires that all state and local bidding laws and requirements be followed including the payment of state prevailing wages. If the project is jointly funded with federal money, federal laws may override state requirements, so it is imperative for the project owners to discuss with the federal funding source. The OPWC has provided bid proposal notes (see link below) which contain the necessary state requirements. Questions should be directed to the local subdivision’s legal counsel.

 More Information: OPWC Project Managers page 

Professional Design Services Procurement

Ohio law, ORC Sections 153.65 to 153.73, requires all public authorities to use a qualifications-based selection process in choosing professional design services (i.e. architect, landscape architect, professional engineer, and surveyor) or design-build services.

Project Agreement, Scope Changes

Once a project agreement is released by the OPWC, it must be signed and returned within 45 days. An executed project agreement is required prior to the disbursement of funds. Any changes in scope require an Amendment, approved by the NRAC. Under no circumstance shall an application be submitted to an NRAC for which there is an existing active Project Agreement for the same scope or portion of the same scope.

 

Project Cost Underruns and Overruns / Supplemental Funding

Any surplus in assistance resulting from a project cost underrun will be returned to the originating NRAC. If an NRAC has an active contingency list, fund balances will be used by the OPWC to fund contingency projects according to rank.

All project cost overruns are the sole responsibility of the project applicant. However, a project applicant may request additional funds from its NRAC for completing a project. NRAC meeting minutes are required for the OPWC to amend the Project Agreement accordingly.

Public Records

It is the policy of the OPWC to strictly adhere to the State's Public Records Act. All exemptions to openness are to be construed in their narrowest sense and any denial of public records in response to a valid request must be accompanied by an explanation, including legal authority, as outlined in the Ohio Revised Code. If the request for public records is written, the explanation of denial must also be written.

Records are defined as including the following: any document - paper, electronic (including but not limited to e-mail), or other format - that is created or received by, or comes under the jurisdiction of a public office that documents the organization, functions, policies, decisions, procedures, operations, or other activities of this office. All records of the OPWC are public unless they are specifically exempt from disclosure under the Ohio Revised Code. Records will be organized and maintained so that they are readily available for inspection and copying, and available according to OPWC's record retention policy.

Requests & Responses
Each request for public records should be evaluated for a response using the following guidelines:

Identification of Public Records Requested - The requester must identify the records requested with sufficient clarity to allow the OPWC to identify, retrieve, and review the records. If it is not clear what records are being sought, the OPWC will contact the requester for clarification, and should assist the requester in revising the request by informing the requester of the manner in which the Commission keeps its records.

Method of Request & Identity of Requester - The requester does not have to put a records request in writing, and does not have to provide his or her identity or the intended use of the requested public record.

Availability of Public Records for Inspection & Production of Copies - Public records are to be available for inspection during regular business hours, with the exception of published holidays. Public records must be made available for inspection promptly. Copies of public records must be made available within a reasonable time period. "Prompt" and "reasonable" take into account the volume of records requested, the proximity of the location where the records are stored, and the necessity for any legal review of the records requested.

Time Constraints for Satisfying Public Records Request - Each request should be evaluated for an estimated length of time required to gather the records. If feasible, routine requests for records should be satisfied immediately. Routine requests included, but are not limited to, meeting minutes (both in draft and final form), budgets, salary information, forms and applications, personnel rosters, etc. If fewer than 20 pages of copies are requested or if the records are readily available in an electronic format that can be e-mailed or downloaded easily, these should be made as quickly as the equipment allows.

All requests for public records must either be satisfied or be acknowledged in writing within three business days following receipt of the request. If a request will not be satisfied within three business days, the acknowledgement must include at least a request for clarification, if necessary, and an estimated cost if copies are requested.

Denial of Public Records Request - Any denial of public records requested must include an explanation, including legal authority. If portions of a record are public and portions are exempt, the exempt portions are to be redacted and the rest released. If there are redactions, each redaction must be accompanied by a supporting explanation, including legal authority.

Cost for Obtaining Copies of Public Records

Charges for public records are for the actual cost of making copies as follows:

  • Paper copies are 5 cents per page
  • Downloaded computer files to a compact disc (CD) are $1 per disc
  • No charge for e-mailed documents
  • If the requester asks that the documents be mailed there is a charge for the actual cost of postage and mailing supplies

E-Mail as Public Records
E-mail is to be treated in the same fashion as records in other formats and should follow the same retention schedule. Records in private e-mail accounts used to conduct public business are subject to disclosure, and all employees or representatives of the OPWC are instructed to retain their e-mails that relate to public business and to copy them to the business e-mail accounts.

Records Retention

For every project approved by the Commission, a “project folder” is created for project management purposes and includes the project application, Project Agreement, disbursement records, Requests to Proceed, and general correspondence. Project related information that is stored electronically includes the Project Agreement, a list of all approved vendors or each project and their respective contract amounts, a list of all vendors paid by the Commission, and the dollar amount paid. After audit of the OPWC by Auditor of State's Office, project folders are transferred to State Archives for possible retention or destruction.

It is strongly recommended that Natural Resource Assistance Councils retain those documents pertaining to a specific program year’s slate of projects for a period of two years after the recommendations are forwarded to OPWC. This includes unfunded applications, meeting minutes, and any other documentation related to a particular program year.

Requests to Proceed

The Request to Proceed is required for all land acquisition activities which must be completed within one year of the project agreement date. At least 30 days prior to closing, the applicant must include proposed deed restrictions, purchase contract, Appraisal Report, and title insurance binder or commitment for title. If using the pre-closing option, there must also be a closing protection letter and signed escrow agreement. Should title work disclose information that could compromise conservation value, at the OPWC Director's discretion, the project application will be returned to the NRAC for review.

Resolutions of Support

Ohio Statute, ORC 164.23(B) and 164.23(C), requires that certain project applications include Resolutions of Support. If the applicant is a county, township or municipality and the project is located wholly within the applicant’s boundaries, then no resolutions are needed from any other local government. Park districts, regardless of the location of the property, are not required to obtain any resolutions but must consult with each county, township, and municipality in which the project is located. All other applicants must obtain a county resolution for each county in which the project is located and from the impacted township or municipality. If the project is in two to four townships or municipalities, then resolutions are needed from at least one-half. If the project is in five or more communities, then resolutions are needed from at least three-fifths.

Resolutions of Support do not apply to Improvements Only projects since the requirement was met for the property’s acquisition.

 

Revenue-Producing Activities

Any revenue-producing activity requires approval of the OPWC and may only be conducted in which proceeds are used to maintain the conservation values of the property. Revenue records must be maintained for a period of three years and be made available to the OPWC upon request. 

Stream Restoration & Property Ownership

Stream restoration projects are permitted on public or private property provided the applicant is eligible under Clean Ohio statute. If performed on public property, the OPWC Clean Ohio deed restrictions must be recorded on the property. If performed on private property, an OPWC Clean Ohio conservation easement must be placed and recorded on the property. The CE boilerplate may need modification for a stream restoration project but the critical section providing for OPWC’s covenants which are also contained in the deed restrictions must be included. Either situation requires the deed restrictions or CE to be recorded and forwarded to the appropriate program representative prior to the restoration work.

Structures

The allowance for funding acquisition and /or demolition of existing structures on Clean Ohio property is at the discretion of each NRAC. The NRAC’s policy must be determined prior to a funding round and be specified in writing as part of the NRAC’s project selection methodology. Existing structures may be used for nature or outdoor education centers, park offices, and/or conservation-related storage but cannot be used as a caretaker’s residence.

Subdivision Applicant Codes

The Commission uses a unique code to identify applicants, determine their eligibility to receive funding and to manage and track project information. This code is to be provided on page 1 of the Application for Financial Assistance. Subdivision codes are assigned by the Commission at the written request of the applicant on the entity’s letterhead and should be made prior to applying for financial assistance. Requests by nonprofit organizations, as defined in Ohio Revised Code Section 164.20 (B), must be signed by the chief executive officer. Requests from a nonprofit organization must also include documentation of their purpose and Internal Revenue Service tax exempt status. Nonprofit organizations receiving I.R.S. 501 (c) status on or after October 9, 1969 must include a copy of I.R.S. form 1023 “recognition of exemption”. Nonprofit organizations receiving I.R.S. 501 (c) status before October 9, 1969 must include a copy of their I.R.S. letter of exemption. The IRS documentation should indicate that one of the organization’s designated activities is directly related to the purposes for which Clean Ohio Green Space Conservation grants are provided.

Surveys

A survey should be current. An old survey won't account for any changes to the subject property or to adjacent properties.

Timber Value

If applicable, the stumpage value of timber (the “Timber Value”) may also be considered as a credit in a bargain sale and be used for match. A qualified forester or appraiser may perform a timber appraisal to determine the on-site inventory and estimate of stumpage value of timber on the property. The stumpage value of timber generally considers the volume of timber on the property, the species composition, the quality, and other related factors to determine the current Timber Value.

If using Timber Value as bargain sale match, it is the Client and/or Applicant’s responsibility to provide this information to the property/land appraiser (and appraisal reviewer if applicable). The appraiser uses this information to determine the impact of the Timber Value on the overall property/land value appraisal and reconciles the Timber Value within the Appraisal Report.

The Ohio Public Works Commission recommends using an individual certified by the Association of Consulting Foresters of America, Inc. (ACF) or the Society of American Foresters (SAF).

Title Search & Insurance

OPWC requires a clear or marketable title in order to release a Notice to Proceed to approve commencement with closing. Although the OPWC does not have a standard for title searches, a full search is a 60-year chain of title search on all transactions without prior title evidence. Once a title company completes its verification, it will back its guarantee with title insurance to insure ownership rights to the property.

Travel Expenses

OPWC will reimburse for travel expenses incurred by consultants or contractors while performing eligible work according to the physical scope of the project as defined by the OPWC Project Agreement, Appendix A. Reimbursable costs must be in accordance with the OBM Travel Rule. Reimbursement for lodging and meals & incidentals will be based on per diem rates according to the location of work activity set by the federal General Service Administration (GSA). Mileage is eligible at the state rate in effect at the time of travel (see Travel Rule link).

Utility Easements

Utility easements are permitted for property usage such as for restrooms and lighting. Costs cannot be part of the Clean Ohio funding or Match. Utility easements must be specified in the Use & Development section in the Deed Restrictions, if known at the time of application. Requests for utility easements after Clean Ohio restrictions are in place  must be made in writing to the OPWC director and are at the director's discretion.