CHAPTER 22. STATE REGULATED WETLANDS
IC 13-18-22
Chapter 22. State Regulated Wetlands
IC 13-18-22-1
Permit for wetland activity; exceptions; goal of permitting
Sec. 1. (a) Except as provided in subsection (b), a person
proposing a wetland activity in a state regulated wetland must obtain
a permit under this chapter to authorize the wetland activity.
(b) A permit is not required for the following wetland activities:
(1) The discharge of dirt, sand, rock, stone, concrete, or other
inert fill materials in a de minimis amount.
(2) A wetland activity at a surface coal mine for which the
department of natural resources has approved a plan to:
(A) minimize, to the extent practical using best technology
currently available, disturbances and adverse effects on fish
and wildlife;
(B) otherwise effectuate environmental values; and
(C) enhance those values where practicable.
(3) Any activity listed under Section 404(f) of the Clean Water
Act, including:
(A) normal farming, silviculture, and ranching activities,
such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices;
(B) maintenance, including emergency reconstruction of
recently damaged parts, of currently serviceable structures
such as dikes, dams, levees, groins, riprap, breakwaters,
causeways, and bridge abutments or approaches, and
transportation structures;
(C) construction or maintenance of farm or stock ponds or
irrigation ditches, or the maintenance of drainage ditches;
(D) construction of temporary sedimentation basins on a
construction site that does not include placement of fill
material into the navigable waters; and
(E) construction or maintenance of farm roads or forest
roads, or temporary roads for moving mining equipment,
where the roads are constructed and maintained, in
accordance with best management practices, to assure that:
(i) flow and circulation patterns and chemical and
biological characteristics of the navigable waters are not
impaired;
(ii) the reach of the navigable waters is not reduced; and
(iii) any adverse effect on the aquatic environment will be
otherwise minimized.
(c) The goal of the permitting program for wetland activities in
state regulated wetlands is to:
(1) promote a net gain in high quality isolated wetlands; and
(2) assure that compensatory mitigation will offset the loss of
isolated wetlands allowed by the permitting program.
As added by P.L.282-2003, SEC.38.
IC 13-18-22-2
Wetland rules; improving classification of isolated wetland
Sec. 2. (a) The board may adopt rules under IC 4-22-2 and
IC 13-14 not later than February 1, 2005, to implement the part of the
definition of Class I wetland under IC 13-11-2-25.8(a)(1)(B).
(b) Before the adoption of rules by the board under subsection (a),
the department shall determine the class of a wetland in a manner
consistent with the definitions of Class I, II, and III wetlands in
IC 13-11-2-25.8.
(c) The classification of an isolated wetland that is based on the
level of disturbance of the wetland by human activity or development
may be improved to a higher numeric class if an action is taken to
restore the isolated wetland, in full or in part, to the conditions that
existed on the isolated wetland before the disturbance occurred.
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.5; P.L.2-2005, SEC.55.
IC 13-18-22-3
Individual permits for wetland activity; adoption of rules
Sec. 3. (a) An individual permit is required to authorize a wetland
activity in a Class III wetland.
(b) Except as provided in section 4(a) of this chapter, an
individual permit is required to authorize a wetland activity in a
Class II wetland.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 not
later than June 1, 2005, to govern the issuance of individual permits
by the department under subsections (a) and (b).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.6.
IC 13-18-22-4
General permits for wetland activities; adoption of rules
Sec. 4. (a) Wetland activities with minimal impact in Class I
wetlands and Class II wetlands, including the activities analogous to
those allowed under the nationwide permit program (as published in
67 Fed. Reg. 2077-2089 (2002)), shall be authorized by a general
permit rule.
(b) Wetland activities in Class I wetlands shall be authorized by
a general permit rule.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 not
later than February 1, 2005, to establish and implement the general
permits described in subsections (a) and (b).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.7.
IC 13-18-22-5
Contents of wetland rules
Sec. 5. (a) The rules adopted under section 3 of this chapter:
(1) must require that the applicant demonstrate, as a prerequisite
to the issuance of the permit, that wetland activity:
(A) is:
(i) without reasonable alternative; and
(ii) reasonably necessary or appropriate;
to achieve a legitimate use proposed by the applicant on the
property on which the wetland is located; and
(B) for a Class III wetland, is without practical alternative
and will be accompanied by taking steps that are practicable
and appropriate to minimize potential adverse impacts of the
discharge on the aquatic ecosystem of the wetland;
(2) except as provided in subsection (c), must establish that
compensatory mitigation will be provided as set forth in section
6 of this chapter to reasonably offset the loss of wetlands
allowed by the permits; and
(3) may prescribe additional conditions that are reasonable and
necessary to carry out the purposes of this chapter.
(b) The rules adopted under section 4 of this chapter must require,
as a prerequisite to the applicability of the general permit by rule to
a specific wetland activity, that the person proposing the discharge
submit to the department a notice of intent to be covered by the
general permit by rule that:
(1) identifies the wetlands to be affected by the wetland
activity; and
(2) except as provided in subsection (c), provides a
compensatory mitigation plan as set forth in section 6 of this
chapter to reasonably offset the loss of wetlands allowed by the
general permit.
(c) Under subsections (a) and (b), the rules adopted under sections
3 and 4 of this chapter may provide for exceptions to compensatory
mitigation in specific, limited circumstances.
(d) For purposes of subsection (a)(1)(A):
(1) a resolution of the executive of the county or municipality
in which the wetland is located; or
(2) a permit or other approval from a local government entity
having authority over the proposed use of the property on which
the wetland is located;
that includes a specific finding that the wetland activity is as
described in subsection (a)(1)(A) is considered conclusive evidence
of that fact.
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.8.
IC 13-18-22-6
Standards for compensatory mitigation
Sec. 6. (a) Except as otherwise specified in subsections (b) and
(c), compensatory mitigation shall be provided in accordance with
the following table:
Wetland Replacement On-site Off-site
Class Class Ratio Ratio
Class I Class II or III 1 to 1 1 to 1
Class I Class I 1.5 to 1 1.5 to 1
Class II Class II or III 1.5 to 1 2 to 1
Nonforested Nonforested
2 to 1 2.5 to 1
Forested Forested
Class III Class III 2 to 1 2.5 to 1
Nonforested Nonforested
2.5 to 1 3 to 1
Forested Forested
(b) The compensatory mitigation ratio shall be lowered to one to
one (1:1) if the compensatory mitigation is completed before the
initiation of the wetland activity.
(c) A wetland that is created or restored as a water of the United
States may be used, as an alternative to the creation or restoration of
an isolated wetland, as compensatory mitigation for purposes of this
section. The replacement class of a wetland that is a water of the
United States shall be determined by applying the characteristics of
a Class I, Class II, or Class III wetland, as appropriate, to the
replacement wetland as if it were an isolated wetland.
(d) The off-site location of compensatory mitigation must be
within:
(1) the same eight (8) digit U.S. Geological Service hydrologic
unit code; or
(2) the same county;
as the isolated wetlands subject to the authorized wetland activity.
(e) Exempt isolated wetlands may be used to provide compensatory
mitigation for wetlands activities in state regulated wetlands. An
exempt isolated wetland that is used to provide compensatory
mitigation becomes a state regulated wetland.
As added by P.L.282-2003, SEC.38. Amended by P.L.241-2005,
SEC.4.
IC 13-18-22-7
Department action on wetland permits; department action before
adoption of wetland rules; forms
Sec. 7. (a) The department shall:
(1) administer the permit programs established by this chapter;
and
(2) review and issue decisions on applications for permits to
undertake wetland activities in state regulated wetlands in
accordance with the rules issued by the board under this chapter.
(b) Before the adoption of rules by the board under this chapter, the
department shall:
(1) issue individual permits under this chapter consistent with the
general purpose of this chapter; and
(2) for wetland activities in Class I wetlands, issue permits under
this subsection:
(A) that are simple, streamlined, and uniform;
(B) that do not require development of site specific provisions;
and
(C) promptly upon submission by the applicant to the
department of a notice of registration for a permit.
(c) Not later than June 1, 2004, the department shall make
available to the public:
(1) a form for use in applying for a permit under subsection
(b)(1); and
(2) a form for use in submitting a notice of registration for a
permit to undertake a wetland activity in a Class I wetland under
subsection (b)(2).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.9.
IC 13-18-22-8
Department action on wetland permits; effective dates of permits;
amended permit application
Sec. 8. (a) Subject to subsection (f), the department shall make a
decision to issue or deny an individual permit under section 3 or
7(b)(1) of this chapter not later than one hundred twenty (120) days
after receipt of the completed application. If the department fails to
make a decision on a permit application by the deadline under this
subsection or subsection (f), a permit is considered to have been
issued by the department in accordance with the application.
(b) A general permit under section 4 of this chapter becomes
effective with respect to a proposed wetland activity that is within
the scope of the general permit on the thirty-first day after the
department receives a notice of intent from the person proposing the
wetland activity that the wetland activity be authorized under the
general permit.
(c) Except as provided in subsection (d), a permit to undertake a
wetland activity in a Class I wetland under section 7(b)(2) of this
chapter is considered to have been issued to an applicant on the
thirty-first day after the department receives a notice of registration
submitted under section 7(b)(2) of this chapter if the department has
not previously authorized the wetland activity.
(d) The department may deny a registration for a permit for cause
under subsection (c) before the period specified in subsection (c)
expires.
(e) The department must support a denial under subsection (a) or
(d) by a written statement of reasons.
(f) The department may notify the applicant that the completed
application referred to in subsection (a) is deficient. If the department
fails to give notice to the applicant under this subsection not later
than fifteen (15) days after the department's receipt of the completed
application, the application is considered not to have been deficient.
After receipt of a notice under this subsection, the applicant may
submit an amended application that corrects the deficiency. The
department shall make a decision to issue or deny an individual
permit under the amended application within a period that ends a
number of days after the date the department receives the amended
application equal to the remainder of:
(1) one hundred twenty (120) days; minus
(2) the number of days the department held the initial application
before giving a notice of deficiency under this subsection.
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.10.
IC 13-18-22-9
Designation of Class III wetland as outstanding state protected
wetland; rules; restrictions on wetland owner; rescission of
designation
Sec. 9. (a) The owner of a Class III wetland may petition the board
for designation of the wetland as an outstanding state protected
wetland. Upon verification by the board that the wetland is a Class
III wetland and that the petitioner is the owner of the wetland, the
board shall conduct a proceeding under IC 4-22-2 and IC 13-14 to
adopt a rule designating the wetland as an outstanding state protected
wetland.
(b) A rule adopted by the board under subsection (a) must
specifically identify each wetland to be designated as an outstanding
state protected wetland, including:
(1) the wetland type;
(2) a legal description of the wetland as delineated; and
(3) other information considered necessary by the board.
(c) The owner of a Class III wetland designated as an outstanding
state protected wetland under this section shall:
(1) not cause or allow any anthropogenic activities on the
property on which the wetland is located that may adversely
affect or degrade the wetland, except for activities with minimal
and short term effect, such as construction of an observation
pathway or installation of an underground pipeline that are:
(A) authorized by rules adopted by the board; or
(B) approved by the department in the absence of rules under
clause (A); and
(2) provide for the long term assurance of the protections
described in subdivision (1) through:
(A) a restrictive covenant that is recorded with respect to the
property on which the delineated wetland is located; or
(B) a grant of title to or a conservation easement in the
property on which the delineated wetland is located to:
(i) the department of natural resources; or
(ii) a nonprofit entity with demonstrated ability in the
maintenance and protection of wetlands.
(d) Notwithstanding the designation of a wetland under this section
by the board as an outstanding state protected wetland, the owner of
a Class III wetland may petition the board for rescission of the
designation if the owner can demonstrate important social or
economic needs that warrant adverse effects to the wetland. In its
review of the petition, the board shall give great weight to a
resolution of the legislative body of the municipality or county in
which the Class III wetland is located describing important social or
economic needs, the accomplishment of which would necessitate
adverse effects to the wetland.
As added by P.L.282-2003, SEC.38.
IC 13-18-22-10
Department authority over wetlands
Sec. 10. (a) Except as provided in subsection (b), the department
has no authority over the:
(1) filling;
(2) draining; or
(3) elimination by other means;
before January 1, 2004, of a wetland that would have been an
isolated wetland.
(b) The department has authority over wetland activities in an
isolated wetland, including an exempt isolated wetland, that are
subject to the provisions of:
(1) a National Pollutant Discharge Elimination System (NPDES)
permit issued by the department under 33 U.S.C. 1342;
(2) an agreed order under IC 13-30-3-3, consent order, or consent
decree executed by the department and the regulated party;
(3) an order issued under IC 13-30-3-4; or
(4) a judgment of a court enforcing or upholding an enforcement
order or decree described in subdivision (2) or (3);
that became effective before January 1, 2004.
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004,
SEC.11.
IC 13-18-22-11
Applicability of chapter to certain isolated wetlands
Sec. 11. When land referred to in IC 13-11-2-74.5(a)(7) is no
longer subject to United States Department of Agriculture wetland
conservation rules:
(1) isolated wetlands located on the land are subject to this
chapter; and
(2) any past wetland activities in the isolated wetlands located on
the land become subject to this chapter, unless the wetland
activities were in compliance with United States Department of
Agriculture wetland conservation rules.
As added by P.L.282-2003, SEC.38.