This material serves to replace previously issued advisories as well as describe select statutory provisions in the Ohio Revised Code (ORC) and administrative rules in the Ohio Administrative Code (OAC). If applicable, topics include ORC and/or OAC linked references as well as linked websites to obtain more information. Use Ctrl + F to search by key word.Americans with Disabilities Act
Local governments and nonprofit organizations are required to apply minimum design standards when constructing and altering pedestrian facilities, though higher than minimum standards are encouraged where possible. Design engineers and project managers are advised to review state standards at the Ohio Department of Transportation Roadway Engineering website.Application / Project Location
Application should be made to the NRAC where the project is located. Therefore, if a single project is located in two NRACs it must be submitted as two applications that cross-reference each other.Appraisals
Prior to acquiring property by fee simple or as a conservation easement, the OPWC requires an Appraisal Report (as opposed to a Restricted Appraisal Report). The report is typically provided with other required documents as part of the Request to Proceed submittal. However, Natural Resources Assistance Councils (NRACs) may require that an appraisal be provided with the grant application so applicants should check the requirements of the NRAC having jurisdiction over the project location. It is the responsibility of the grant recipient to obtain the appraisal which must be conducted by an Ohio Department of Transportation (ODOT) Prequalified Appraiser who is credentialed in value analysis. Appraisals are deemed valid for twelve months from the time they are performed.
Projects for which the purchase price is less than the appraised value for gift taxes/charitable contributions (“bargain sale”) will also be required to have an appraisal review performed by an ODOT Prequalified Appraisal Reviewer. A desk review, submitted in report format, is required in which the review appraiser analyzes the information provided by the appraiser of record. The appraisal review is to confirm the appraiser’s opinion of value and to ensure that the purchase price history, comparables, adjustments, and disclaimers are accurate. Applicants that have an appraisal review rejected will not be issued a Notice to Proceed until these discrepancies are resolved. When using phantom match, the OPWC reserves the right to require the review appraisal prior to issuing an agreement.Audit Requirements
OPWC-funded projects are subject to all state audit requirements. A copy of an audit in connection with and specific to an approved project must be provided to the OPWC. Any negative or adverse findings pertaining to the project must be addressed. If findings are not addressed or satisfactorily resolved, the OPWC may bar the applicant from further financial assistance until the applicant complies with or resolves such findings.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. This line is not intended for engineering over-runs or right-of-way expenses. The Commission may request documentation it considers appropriate, including the subdivision's agreement with the consulting engineer. Advanced approval is required for over-runs.Deed Restrictions and Liquidated Damages
The OPWC requires that its deed restrictions be placed upon and recorded for all acquired property, easements, and property upon which improvements are made. The deed restriction language cannot be modified. Any modification or breach of the recorded deed restrictions or conservation easement will result in the repayment of both the grant amount disbursed under the Agreement and liquidated damages equal to 100% of the funds disbursed by the OPWC for the project together with interest accruing at a rate of 6% per annum from the date of disbursement. Note that the enforcement provision pertains to the grant recipient.Disbursements
The Commission will pay eligible project costs at its participation percentage rate up to the total amount of grant and/or loan assistance. Applicants should be prepared to meet their local share requirements at all stages of the project. At the discretion of the Commission, the participation rate can be adjusted during the course of 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 Appendix A of 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 project will be considered complete upon receipt of a final disbursement request and submission of the executed settlement statement, and recorded deed and deed restrictions. After the Commission is notified that a project is completed it will provide a summary of all disbursement activity.Eligible / Ineligible Items
Grant funds are available for open space acquisition, including easements (on unprotected property), and related development necessary to make the open space accessible and useable by the general public. This includes structures providing for accessibility (e.g. parking lots, trails, benches, trash receptacles), however, public access is not mandated. Eligible costs include planning, design, engineering, appraisals, environmental assessments, and archaeological surveys.
Generally, project components that do not lend themselves to conservation are not allowable. However, components allowing for passive recreation (e.g. shelter houses, restrooms) or that are aesthetic (e.g. fountains, statues) are permitted on the property but cannot be paid by Clean Ohio funding or match. Additional ineligible costs include: hydromodification, mitigation, administrative and monitoring costs, maintenance items, seller paid items/seller settlement costs, taxes, etc. Any questions regarding eligibility should be directed to the OPWC.Farmland Preservation / Agricultural Easements / NRCS
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.
Therefore, agricultural land as a portion of a USDA Natural Resources Conservation Service (NRCS) project cannot be part of an OPWC Clean Ohio project. USDA can leverage the OPWC forested or riparian portion of a project but OPWC cannot leverage the agricultural portion. The OPWC restrictions on the forested or riparian portion must be zoned as conservation in the recorded deed.Hydromodification
Hydromodification is prohibited by statute. Hydromodification activities are manmade or engineered modifications of natural drainage or streams, and activities include dams, dredging, sedimentation, bank clearing, and other actions that accelerate untreated water runoff or encourage invasive nonnative species. Permitted activities include restoring the natural stream or drainage conditions.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 Appendix E 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 an RTP has been approved and a Notice to Proceed has been issued, the applicant may submit a disbursement request/Appendix E 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”). For appraisal purposes the life estate is comprised of the 1) interest held by the life tenant, and 2) the interest held by the remainderman (a future interest entitling the acquiring party to the estate after the prior estate or interest has expired).Local Match (Prepaids and In-kind)
The local match is the participation percentage rate that is made up of 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 may either be reimbursed (up to one year prior to the date of the Agreement), or credited toward the local match.Long Term Ownership and Control
Properties or rights in properties obtained with Clean Ohio funds are required to remain in the ownership and control of the grant recipient in perpetuity. A request to transfer ownership and control must be made in writing to the OPWC Director.Meeting Attendance
Any District committee member who fails to attend at least three-fifths of meetings for any two-year period forfeits their position on the committee.Mineral Rights / Oil & Gas Leasing
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. Thus, the applications will be approved as submitted. Requests to engage in oil and gas leasing on Clean Ohio properties that have been acquired along with the mineral rights will be denied as this activity is not defined in statute. Requests to engage in these activities on Clean Ohio properties acquired with a third party holding the mineral rights will be dealt with on a case by case basis in conjunction with the OPWC’s legal counsel.Minority Business Enterprise (MBE)
On OPWC-funded projects 15% of local subdivision direct contracts for procurement of equipment, materials, and supplies must be made from state certified MBE vendors. Projects with direct procurement will not be issued a Notice to Proceed unless evidence is provided that the MBE percentage requirement is met. Furthermore, reimbursement to local subdivisions for procured items will not be released unless evidence that the MBE percentage requirement was met.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 Nominations
A Natural Resource Assistance Council is established in each of the nineteen districts. 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.Open Meeting Requirements
District Public Works Integrating Committees and their subcommittees, including Small Government subcommittees and County subcommittees, 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.
The district 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
A local subdivision is not required to post signage on an OPWC funded project but if it does it must follow a standardized layout designed to increase public awareness through signage repetition. OPWC will participate in the cost of the signage and reimburse the local subdivision on the project’s applicable disbursement ratio based on a photo of the sign and invoice. OPWC projects jointly funded with other state or federal funding agencies which have other signage requirements are exempt from the standardized layout.Post-Acquisition Activity / Site Improvements
Site improvements may be included with the application for acquisition of a property. All post-acquisition activities must be concluded within a two-year period from the date of acquisition.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. An exception applies if the project is jointly funded with federal money in which case federal laws override state requirements. 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.Procurement of Professional Design Services
Ohio law requires all public authorities to use a Qualifications-Based Selection (QBS) process in choosing professional design services (i.e. architect, landscape architect, professional engineer, and surveyor) or design-build services. Public authorities are required to take the following steps:
Publicly announce all contracts giving sufficient time for firms to submit a statement of qualifications
Evaluate and rank the submissions
Negotiate a contract with the firm ranked most qualified to perform the required services at a compensation determined in writing to be fair and reasonable to the public authority
Prescribed legal selection, negotiation, and contracting procedures do not have to be followed if the project is determined in writing to be an emergency necessitating immediate action, or if the design fee is less than $50,000 and both of the following requirements are met:
The public authority selects a single design professional or firm from among those who submitted a statement of qualifications within the immediately preceding year
The public authority and selected design professional or firm enter into contract negotiations in compliance with the law
The Commission requires that subdivisions enter into a project specific contract, signed by both parties, that delineates the type of billing and payment method. All contracts must contain the following sections:
Scope of Services specifying what the consultant engineer will provide including such items as: tasks to be performed, schedule for performance, deliverables, review procedures, and number of reports to be delivered
Contracting Method (fixed price, time and materials, or cost plus fixed fee)
Contract Terms and Conditions such as contract period, key personnel, subcontracting provisions, penalties, change in scope, termination rights, method of payment and amendment provisions
The Commission may request evidence of compliance with these procedures including evidence of QBS, as well as a copy of the contract between the local subdivision and its professional design firm.Project Agreement
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.Project Cost Overruns and Under-runs / Supplemental Funding
All project cost overruns are the sole responsibility of the project applicant. Any surplus in assistance resulting from a project cost under-run will be returned to the originating District. However, a project applicant may request under-run monies from its District for completing a project. District 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.
Failure to Respond to a Public Records Request
The OPWC recognizes the legal and non-legal consequences of failure to properly respond to a public records request. In addition to the distrust in government that failure to comply may cause, it may also result in a court ordering the public office to comply with the law and to pay the requester's attorney's fees and damages.
For every project approved by the Commission, a “project folder” is created for project management purposes. This folder is in a paper format and contains such items including the original 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. The Commission will maintain completed project folders and information in perpetuity.
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 all project prime contractors, and for the direct procurement of materials, supplies and services. For land acquisition and at least 30 days prior to closing, the applicant must include proposed deed restrictions, purchase contract, appraisal 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.Resolutions of Support
The applicant must include a resolution(s) of support with the project application unless the applicant is a park district. In that case, the park district is responsible for consulting with the legislative authority of each subdivision in which the proposed project is located.
Except as noted above a resolution of support is required from the county in which the project is located and whichever of the following applies:
If the proposed project is within the boundaries of a single township or municipal corporation, then a resolution of support is required from that township or municipal corporation;
If the proposed project is within the boundaries in more than one, but fewer than five townships or municipal corporations, then a resolution of support is required from at least half of the total number of affected communities;
If the proposed project is within the boundaries of five or more townships or municipal corporations, then a resolution of support is required from at least three-fifths of the total number of affected communities.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. Any profit producing venture may only be conducted in which proceeds are used to maintain the conservation values of the property.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 Section 164.20 (B) of the Revised Code, 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.