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 personproposing a wetland activity in a state regulated wetland must obtaina 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 otherinert fill materials in a de minimis amount.
(2) A wetland activity at a surface coal mine for which thedepartment of natural resources has approved a plan to:
(A) minimize, to the extent practical using best technologycurrently available, disturbances and adverse effects on fishand wildlife;
(B) otherwise effectuate environmental values; and
(C) enhance those values where practicable.
(3) Any activity listed under Section 404(f) of the Clean WaterAct, including:
(A) normal farming, silviculture, and ranching activities,such as plowing, seeding, cultivating, minor drainage,harvesting for the production of food, fiber, and forestproducts, or upland soil and water conservation practices;
(B) maintenance, including emergency reconstruction ofrecently damaged parts, of currently serviceable structuressuch as dikes, dams, levees, groins, riprap, breakwaters,causeways, and bridge abutments or approaches, andtransportation structures;
(C) construction or maintenance of farm or stock ponds orirrigation ditches, or the maintenance of drainage ditches;
(D) construction of temporary sedimentation basins on aconstruction site that does not include placement of fillmaterial into the navigable waters; and
(E) construction or maintenance of farm roads or forestroads, or temporary roads for moving mining equipment,where the roads are constructed and maintained, inaccordance with best management practices, to assure that:
(i) flow and circulation patterns and chemical andbiological characteristics of the navigable waters are notimpaired;
(ii) the reach of the navigable waters is not reduced; and
(iii) any adverse effect on the aquatic environment will beotherwise minimized.
(c) The goal of the permitting program for wetland activities instate regulated wetlands is to:
(1) promote a net gain in high quality isolated wetlands; and
(2) assure that compensatory mitigation will offset the loss ofisolated 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 andIC 13-14 not later than February 1, 2005, to implement the part of thedefinition 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 mannerconsistent with the definitions of Class I, II, and III wetlands inIC 13-11-2-25.8.
(c) The classification of an isolated wetland that is based on thelevel of disturbance of the wetland by human activity or developmentmay be improved to a higher numeric class if an action is taken torestore the isolated wetland, in full or in part, to the conditions thatexisted 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 wetlandactivity in a Class III wetland.
(b) Except as provided in section 4(a) of this chapter, anindividual permit is required to authorize a wetland activity in aClass II wetland.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 notlater than June 1, 2005, to govern the issuance of individual permitsby 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 Iwetlands and Class II wetlands, including the activities analogous tothose allowed under the nationwide permit program (as published in67 Fed. Reg. 2077-2089 (2002)), shall be authorized by a generalpermit rule.
(b) Wetland activities in Class I wetlands shall be authorized bya general permit rule.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 notlater than February 1, 2005, to establish and implement the generalpermits 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 prerequisiteto 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 theproperty on which the wetland is located; and
(B) for a Class III wetland, is without practical alternativeand will be accompanied by taking steps that are practicableand appropriate to minimize potential adverse impacts of thedischarge on the aquatic ecosystem of the wetland;
(2) except as provided in subsection (c), must establish thatcompensatory mitigation will be provided as set forth in section6 of this chapter to reasonably offset the loss of wetlandsallowed by the permits; and
(3) may prescribe additional conditions that are reasonable andnecessary 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 toa specific wetland activity, that the person proposing the dischargesubmit to the department a notice of intent to be covered by thegeneral permit by rule that:
(1) identifies the wetlands to be affected by the wetlandactivity; and
(2) except as provided in subsection (c), provides acompensatory mitigation plan as set forth in section 6 of thischapter to reasonably offset the loss of wetlands allowed by thegeneral permit.
(c) Under subsections (a) and (b), the rules adopted under sections3 and 4 of this chapter may provide for exceptions to compensatorymitigation in specific, limited circumstances.
(d) For purposes of subsection (a)(1)(A):
(1) a resolution of the executive of the county or municipalityin which the wetland is located; or
(2) a permit or other approval from a local government entityhaving authority over the proposed use of the property on whichthe wetland is located;
that includes a specific finding that the wetland activity is asdescribed in subsection (a)(1)(A) is considered conclusive evidenceof 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 withthe 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 1Class 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 toone (1:1) if the compensatory mitigation is completed before theinitiation of the wetland activity.
(c) A wetland that is created or restored as a water of the UnitedStates may be used, as an alternative to the creation or restoration ofan isolated wetland, as compensatory mitigation for purposes of thissection. The replacement class of a wetland that is a water of theUnited States shall be determined by applying the characteristics ofa Class I, Class II, or Class III wetland, as appropriate, to thereplacement wetland as if it were an isolated wetland.
(d) The off-site location of compensatory mitigation must bewithin:
(1) the same eight (8) digit U.S. Geological Service hydrologicunit 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 compensatorymitigation for wetlands activities in state regulated wetlands. Anexempt isolated wetland that is used to provide compensatorymitigation 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 beforeadoption 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 toundertake wetland activities in state regulated wetlands inaccordance with the rules issued by the board under this chapter.
(b) Before the adoption of rules by the board under this chapter, thedepartment shall:
(1) issue individual permits under this chapter consistent with thegeneral purpose of this chapter; and
(2) for wetland activities in Class I wetlands, issue permits underthis 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 makeavailable 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 apermit to undertake a wetland activity in a Class I wetland undersubsection (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 adecision to issue or deny an individual permit under section 3 or7(b)(1) of this chapter not later than one hundred twenty (120) daysafter receipt of the completed application. If the department fails tomake a decision on a permit application by the deadline under thissubsection or subsection (f), a permit is considered to have beenissued by the department in accordance with the application.
(b) A general permit under section 4 of this chapter becomeseffective with respect to a proposed wetland activity that is withinthe scope of the general permit on the thirty-first day after thedepartment receives a notice of intent from the person proposing thewetland activity that the wetland activity be authorized under thegeneral permit.
(c) Except as provided in subsection (d), a permit to undertake awetland activity in a Class I wetland under section 7(b)(2) of thischapter is considered to have been issued to an applicant on thethirty-first day after the department receives a notice of registrationsubmitted under section 7(b)(2) of this chapter if the department hasnot previously authorized the wetland activity.
(d) The department may deny a registration for a permit for causeunder 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 completedapplication referred to in subsection (a) is deficient. If the departmentfails to give notice to the applicant under this subsection not laterthan fifteen (15) days after the department's receipt of the completedapplication, the application is considered not to have been deficient.After receipt of a notice under this subsection, the applicant maysubmit an amended application that corrects the deficiency. Thedepartment shall make a decision to issue or deny an individualpermit under the amended application within a period that ends anumber of days after the date the department receives the amendedapplication equal to the remainder of:
(1) one hundred twenty (120) days; minus (2) the number of days the department held the initial applicationbefore 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 protectedwetland; rules; restrictions on wetland owner; rescission ofdesignation
Sec. 9. (a) The owner of a Class III wetland may petition the boardfor designation of the wetland as an outstanding state protectedwetland. Upon verification by the board that the wetland is a ClassIII wetland and that the petitioner is the owner of the wetland, theboard shall conduct a proceeding under IC 4-22-2 and IC 13-14 toadopt a rule designating the wetland as an outstanding state protectedwetland.
(b) A rule adopted by the board under subsection (a) mustspecifically identify each wetland to be designated as an outstandingstate 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 outstandingstate protected wetland under this section shall:
(1) not cause or allow any anthropogenic activities on theproperty on which the wetland is located that may adverselyaffect or degrade the wetland, except for activities with minimaland short term effect, such as construction of an observationpathway 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 underclause (A); and
(2) provide for the long term assurance of the protectionsdescribed in subdivision (1) through:
(A) a restrictive covenant that is recorded with respect to theproperty on which the delineated wetland is located; or
(B) a grant of title to or a conservation easement in theproperty on which the delineated wetland is located to:
(i) the department of natural resources; or
(ii) a nonprofit entity with demonstrated ability in themaintenance and protection of wetlands.
(d) Notwithstanding the designation of a wetland under this sectionby the board as an outstanding state protected wetland, the owner ofa Class III wetland may petition the board for rescission of thedesignation if the owner can demonstrate important social oreconomic needs that warrant adverse effects to the wetland. In itsreview of the petition, the board shall give great weight to aresolution of the legislative body of the municipality or county inwhich the Class III wetland is located describing important social oreconomic 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 departmenthas 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 anisolated wetland.
(b) The department has authority over wetland activities in anisolated wetland, including an exempt isolated wetland, that aresubject 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 consentdecree 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 enforcementorder 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 nolonger subject to United States Department of Agriculture wetlandconservation rules:
(1) isolated wetlands located on the land are subject to thischapter; and
(2) any past wetland activities in the isolated wetlands located onthe land become subject to this chapter, unless the wetlandactivities were in compliance with United States Department ofAgriculture wetland conservation rules.
As added by P.L.282-2003, SEC.38.