Wetland Regulatory Information: Indiana

Name of State Statute:
Title 13 of the Indiana Code The Indiana Department of Environment Management (IDEM) regulates wetlands through its implementation of the Section 401 Water Quality Certification Program. IDEM is given direct authority to implement this program by the Federal Water Pollution Control Act (Clean Water Act or CWA). IDEM draws its state authority to regulate wetlands and implement Section 401 of the Clean Water Act from Title 13 of the Indiana Code. The relevant provisions of Title 13 include: 1) the authority of IDEM to implement all aspects of the Clean Water Act, 2) a definition of waters of the state (shown below), 3) the authority of the Water Pollution Control Board to adopt rules to protect water quality, and 4) the requirement that IDEM implement those water quality rules. Water quality standards for the physical, chemical, and biological properties of Indiana’s waters are established at 327 IAC 2.

Wetland definition and delineation: Wetlands are included in the definition of waters of the state (Indiana Code 13-11-2-265), which, until January 2004, defined waters, for purposes of water pollution control laws and environmental management laws, as:
(1) the accumulations of water, surface and underground, natural and artificial, public and private; or
(2) a part of the accumulations of water; that are wholly or partially within, flow through, or border upon Indiana.
(3)The term "waters" does not include a private pond or an off-stream pond, reservoir, or facility built for reduction or control of pollution or cooling of water before discharge unless the discharge from the pond, reservoir, or facility causes or threatens to cause water pollution.

Note: The definition was amended in January to exclude for the waters definition "exempt isolated wetlands" and to delete "unless the discharge from the pond, reservoir, or facility causes or threatens to cause water pollution" from the last two lines of the above definition. Legislation is currently pending (February 2004) that would further amend the waters definition and Title 13 to regulate some, but not all "isolated wetlands" not regulated by the Corps or EPA under the CWA. The delineation of wetlands in Indiana is done using the 1987 Corps Wetlands Delineation Manual (http://www.wes.army.mil/el/wetlands/pdfs/wlman87.pdf).

Wetlands regulated: IDEM regulates activities in conjunction with the U.S. Army Corps of Engineers (the Corps). Any person or entity wishing to place fill materials, excavate or dredge, or mechanically clear (use heavy equipment) within a wetland, lake, river, or stream must first apply to the Corps for a section 404 permit. If the Corps decides a permit is needed, then the person must obtain a section 401 water quality certification from IDEM. IDEM reviews the proposed activity to determine if it will comply with Indiana’s water quality standards.

In addition to individual permits, the Corps issues Regional General Permits (RGPs) and Nationwide Permits to streamline the permitting process for projects with minimal impacts. IDEM may grant automatic water quality certification for such permits or require that special conditions be met. IDEM currently applies section 401 special conditions to the Corps’ RGP No. 1 and Nationwide Permits 3, 12, 27, and 37. Further information is available at: http://www.in.gov/idem/water/planbr/401/nwp401cond.html.

Indirect or local regulation: The Indiana Department of Natural Resources coordinates the ongoing development and implementation of the Indiana Wetlands Conservation Plan (IWCP). This policy document, adopted by the Natural Resources Commission, is used to guide regulatory and conservation practices in Indiana.

While there are additional policies and regulations that may impact wetlands protection in Indiana, they have been unreliable and/or underutilized for promoting the protection of wetlands.

Indiana counties, cities, and towns may adopt ordinances to protect wetland resources so long as they are at least as restrictive as current state regulation requires. Porter County, the town of Beverly Shores, and the cities of Auburn and LaPorte are examples of localities that have adopted wetland ordinances. Unfortunately, these ordinances do not appear to be effective in strengthening wetland protection.

Contacts:

Source of information: U.S. Army Corps of Engineers, Detroit District
(http://www.lre.usace.army.mil/index.cfm?chn_id=1931)
Type of information: Public notices of 404 individual permits
To get added to the list: Regulatory Office, ATTN: Eric Jones, P.O. Box 1027, Detroit, MI 48231, 313-226-2218 or http://www.lre.usace.army.mil/functions/rf/html/PNmailform.htm.

Source of information: IN Department of Environmental Management (IDEM)
(http://www.in.gov/idem/water/planbr/401/wetlandinfo.html)
Type of information: Public notices of NPDES permits for isolated wetlands
To get added to the list: Dee Marquam, Phone: (317) 233-8488 email:dmarquam@dem.state.in.us

SWANCC Fix: Until the Legislature overrode last year’s veto and passed HB 1789 in January 2004, IDEM was using its authority to implement the National Pollutant Discharge and Elimination System permitting program as an interim method of authorizing the discharge of fill material into wetlands that are not protected under the Clean Water Act. Any wetland fill that did not require a 404 permit and 401 certification required an NPDES permit from IDEM during this interim period. More information on this policy can be found at: http://www.in.gov/idem/water/planbr/401/wnpdes.html.

The Indiana General Assembly recently adopted wetlands legislation providing for the regulation of "isolated wetlands", defined as those wetlands not subject to regulation under CWA section 404. However, the legislation exempts many "isolated wetlands", and relegates many more to Class I status subject to minimal regulation. This legislation will likely also affect the regulation of all wetlands as well as other Indiana waterbodies. The General Assembly is considering (February 2004) further amendments to the new wetlands law and to Title 13.