The New Isolated Wetlands Regulatory Program

1. The New Isolated Wetlands Regulatory Program Andrew Pelloso James Robb Liz Elverson Indiana Department of Environmental Management Office of Water Quality Wetland Regulatory Program

2. Workshop Overview • Introduction of Speakers • Basic Components of the New Law • Permitting Information • Navigating the Application • Compensatory Mitigation • Question and Answer

3. Basic Components of the New State Isolated Wetland Law An overview of the key components of IC 13-18-22

4. Goals • Promote a net gain in high quality isolated wetlands • Assure that compensatory mitigation will offset the loss of isolated wetlands allowed by the permitting program.

5. Classification • Three classes of isolated wetlands • Class III • Class II • Class I • Applicants must class *all* isolated wetlands on the tract • Applicants must provide a rationale (documentation) for the class chosen

6. Class III Minimally Disturbed Rare & Important Low Quality Significantly Disturbed Class III Isolated Wetlands • An isolated wetland that is located in a setting undisturbed or minimally disturbed by human activity or development • And that supports more than minimal wildlife or aquatic habitat or hydrologic function • One of 18 rare or ecologically important types, e.g., fen, dune, swale, forested swamp • Unless it is: • Significantly disturbed, or • Low quality

7. Class III Wetlands Rare/Ecologically Impt. Examples Yost Pond, LaGrange Co., Acid Bog Oak Ridge Park Lake Co. Shrub Swamp Pipewort Pond, Elkhart Co., Muck flat & Sand flat Ritchey Woods, Hamilton Co., Seep

8. Class III Minimally Disturbed Low Quality Significantly Disturbed Class I Isolated Wetlands • The wetland is typified by low species diversity • The wetland contains greater than 50% areal coverage of non-native species • The wetland does not support significant wildlife or aquatic habitat • The wetland does not possess significant hydrologic function • At least 50% of the wetland has been disturbed or affected by human activity or development by: • Removal or replacement of the natural vegetation • Modification of the natural hydrology • The wetland supports only minimal wildlife or aquatic habitat or hydrologic function because • the wetland does not provide critical habitat for federally threatened or endangered species; and • The wetland is characterized by at least one of the following: Rare & Important Class I

9. Class I WetlandsSignificantly Disturbed Examples • Modification of the • Natural hydrology, • Allen Co. Removal/replacement of natural vegetation, Miami Co.

10. Class I WetlandsLow Quality Examples Non-native invasive ► species, Steuben Co. Low Species Diversity, Marion Co.

11. Class III Minimally Disturbed Low Quality Significantly Disturbed Class I Class II Isolated Wetlands • Defined as: • Not a Class I or Class III wetland • Would meet the Class I definition if the wetland were not a rare and ecologically important type. Rare & Important Class II

12. Types of Exempt Isolated Wetlands 1. Voluntarily created wetlands 2. Incidental features 3. Fringe associated with a private pond 4. Wetlands associated with a man-made body of water created from upland 5. Exemptions of specific size and class combinations 6. Wetlands located on land subject to Swampbuster 7. Pollution control structure wetlands

13. Voluntarily Created Wetlands • As defined in the Act, a voluntarily created wetland is an isolated wetland that: • was restored or created in the absence of a governmental order, directive, or regulatory requirement concerning the restoration or creation of the wetland AND • has not been applied for or used as compensatory mitigation or another regulatory purpose that would have the effect of subjecting the wetland to regulation as waters by: • the department OR • another governmental entity

14. Incidental Features – Defined • An isolated wetland is considered exempt if it exists as an incidental feature in or on: • a residential lawn • a lawn or landscaped area of a commercial or governmental complex • agricultural land • a roadside ditch • an irrigation ditch • a manmade drainage control structure

15. Incidental Features – Further Defined • In addition, for an isolated wetland to exist as an incidental feature: • the owner or operator of the property or facility must not intend the isolated wetland to be a wetland AND • the isolated wetland must not be essential to the function or use of the property or facility AND • the isolated wetland must arise spontaneously as a result of damp soil conditions incidental to the function or use of the property or facility

16. Fringe Associated with a Private Pond Photo Courtesy of Jeremy Kieffner Bernardin, Lochmueller, and Associates

17. Associations with Upland Man-made Waterbodies Photo Courtesy of Randy Jones - AquaTerra Consulting

18. Size & Class ExemptionsClass I exemptions • A Class I exemption can be: • The acreage of the largest individual Class I wetland on the tract which qualifies and is equal to or less than 0.5 acre in size OR • 50% of the cumulative acreage of all Class I wetlands on the tract which qualify and are equal to or less than 0.5 acre in size

19. Size & Class ExemptionsClass II exemptions • A Class II exemption can be: • The acreage of the largest individual Class II wetland on the tract which qualifies and is equal to or less than 0.25 acre in size OR • 331/3 of the cumulative acreage of all Class II wetlands on the tract which qualify and are equal to or less than 0.25 acre in size

20. Legend Streams Class I Connected Class II Size Exemptions The number of size exemptions on a particular tract is limited. For Class I this limit is either: • the acreage of the largest individual isolated wetland on the tract < 0.5 acre OR • 50% of the cumulative acreage of all individual isolated wetlands on the tract < 0.5 acre For Class II this limit is either: • The total acreage of the largest individual isolated wetland on the tract < 0.25 acre, or • 33 1/3% of the cumulative acreage of all individual isolated wetlands on the tract< 0.25 acre

21. 0.14 1.688 20.158 0.106 0.155 0.218 0.194 0.581 1.148 2.608 3.251 0.083 0.526 0.158 42.033 0.92 0.142 Legend 1.791 Streams Class I 0.229 2.664 Connected Class II Size Exemption LimitsExample • Calculate your Class II exemption: • Identify the largest Class II still under consideration (0.14 acres). • Sum the acreage of all Class II wetlands still under consideration (0.33 acres) and divide by 3 (0.11 acres). • Take the larger of the two, in this case 0.14 acres. • Calculate your Class I exemption: • Identify the largest Class I still under consideration (0.22 acres). • Sum the acreage of all Class I wetlands still under consideration (0.87 acres) and divide by 2 (0.44 acres). • Take the larger of the two, in this case 0.44 acres. • Delineate all the wetlands on the tract • Remove from consideration: • Connected wetlands • Class II wetlands larger than 0.25 acre • Class I wetlands larger than 0.5 acre

22. Exemptions Due to Swampbuster • Isolated wetlands are considered exempt while subject to regulation under the USDA wetland conservation rules (Swampbuster) due to enrollment in any federal farm program • When land is no longer enrolled in a USDA program, isolated wetlands on the tract are subject to the new law • If landowners were in non-compliance with the provisions of the USDA programs in which they are enrolled, any activities which have occurred in those wetlands are regulated under the new law and may be construed as “unauthorized activities” by IDEM

23. Exemptions for Pollution Control Structures

24. Exemption Exceptions • An isolated wetland that may have otherwise been exempt is NOT exempt if: • the wetland is used for compensatory mitigation • the owner of the wetland declares that it is a state regulated wetland

25. Activity Exemptions • de minimis activities • Surface coal mining • Clean Water Act section 404(f) activities (normal agriculture, maintenance, etc.)

26. Other Provisions of IC 13-18-22 • The law also addresses the following: • The scope of the General Permits • The scope of the Individual Isolated WL Permit • Provisions and deadlines for IDEM Rulemaking • Required standards and ratios for compensatory mitigation • Permit review time frames and deadlines • Avoidance, minimization, alternatives, and the role of local government

27. Permitting Information Application Forms, Types of Permits, Timeframes, and Grandfathering

28. Choosing the Right Application Form • Three application forms at this time: • Application for Combined Isolated Wetlands General Permit • Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State • Regional General Permit Notification Form All forms are available from: www.in.gov/idem/water/planbr/401/application.html

29. Application for Combined Isolated Wetlands General Permit • This application is NOT to be used yet • This application form will be used in the future for: • Minimal impacts to Class I or Class II wetlands, where the activity is analogous to activities now regulated under the Corps’ Nationwide permits • ALL proposed impacts in Class I wetlands not covered by the minimal impact General Permit • The Combined General Permit application will be used once rules are finalized and adopted by the Water Pollution Control Board

30. Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State • Applicable to all projects that propose impacts to both isolated wetlands AND jurisdictional wetlands/waterbodies • Required for projects proposing more than minimal impacts to Class II wetland and which propose any impact to a Class III wetland • Until rules are developed, this is the form to use for projects proposing ANY isolated wetland impacts • Read the instructions carefully – fill out all sections that are pertinent to your project

31. Regional General Permit (RGP) Notification Form • Does not apply to projects with impacts to isolated wetlands • In general, this form is applicable to projects impacting: • Less than 0.1 acre of wetland • Less than 300 linear feet of stream/bank • Other conditions apply to the RGP • This form was updated as of October 18, 2004 • Review timeframe for IDEM is now 30 DAYS

32. 30 60 90 120 Permitting Timeframes • For isolated permit applications, IDEM has 15 days to review for deficiencies and inform the applicant • Permits are considered to be approved if not issued within the allocated time frame (RGP excluded) Number of Days Allowed Review Completeness review RGP, GP & Class I Class II or III & 401 Reviews

33. Grandfathering Clause • IDEM has no authority over the: • filling • draining • elimination by other means before January 1, 2004, of a wetland that would have been an isolated wetland.

34. Grandfathering, continued • IDEM has authority over wetland activities in an isolated wetland, including an exempt isolated wetland, that are subject to the provisions of: • a National Pollutant Discharge Elimination System (NPDES) permit issued by the department under 33 U.S.C. 1342 • an agreed order under IC 13-30-3-3, consent order, or consent decree executed by the department and the regulated party • an order issued under IC 13-30-3-4 • a judgment of a court enforcing or upholding an enforcement order or decree that became effective before January 1, 2004

35. Navigating the Application A Guide to Completing the Application Forms and Avoiding a Letter of Deficiency

36. Delineation Requirements • Delineations are a required component of the application • The delineation report must include a classification of all isolated wetlands • Overview tables are helpful • At a glance, the reviewer can identify all wetlands onsite, wetland jurisdiction, wetland class (if isolated), total acreage, and acreage to be impacted

37. Avoidance, Minimization, and Compensation Requirements • General Permits • Avoidance/minimization not required • Compensatory mitigation is required • Class I Wetland Permits • Avoidance/minimization not required • Compensatory mitigation is required

38. Avoidance, Minimization, and Compensation Requirements • Class II Wetland Permits • Avoidance • without reasonable alternative (local decision) • reasonably necessary or appropriate (local decision) • Minimization not required • Compensatory mitigation is required

39. Avoidance, Minimization, and Compensation Requirements • Class III Wetland Permits • Avoidance: • without reasonable alternative (local decision) • reasonably necessary or appropriate (local decision) • Without practical alternative • Minimization is required • Compensatory mitigation is required

40. Adjacent Property Owners • To ensure quicker processing of applications, we recommend submitting pre-printed label sheets • Labels must be: • Formatted for Avery 5160 • Top line of each label: 65-42 WQS • ALL CAPS, abbreviate where possible, no punctuation • Ten (10) point font 65-42 WQS JOHN SMITH PO BOX 999 123 S MAIN AVE GREENWOOD IN 41206

41. Water Resources Worksheet Refer to the example handout • Jurisdictional Wetlands on site are to be identified in Section A • Isolated Wetlands on site are to be identified in Section B • All wetlands are to be identified in the Water Resources Worksheet regardless of whether or not they are to be impacted • If the entire wetland is to be impacted, state that • If only a portion of the wetland is to be impacted, state the acreage to be impacted

42. Tract History • For project sites with isolated wetland impacts, a tract history is required • This history should provide information on all the wetlands on the site after January 1, 2004, and describe any and all activities within these wetlands • include impacts allowed to wetlands exempt from regulation under the various provisions of federal and state law as well as any prior violations or unauthorized activities

43. Common Application Pitfalls • Incorrect/incomplete application form • No applicant signature • Missing Corps correspondence • No tract history • Missing adjacent property owners • Worksheet errors • No photos submitted • Not all wetlands on tract are delineated • Incorrect mitigation ratios • Incorrect calculation of exemptions for the project

44. Compensatory Mitigation 13-18-22 Requirements and IDEM Recommendations

45. Forested/Non-Forested Wetlands • The Act requires this determination for the purposes of computing required mitigation • No definition of either term (forested or non-forested) is provided in the Act IDEM considers a wetland forested if: • The wetland is dominated by woody, non-climbing vegetation greater or equal to 3.0 inches DBH

47. Compensatory Mitigation Location • If off-site, off-site location must be: • Within the same county OR • Within the same 8-digit watershed

48. Appropriate Mitigation Applicants must propose “in-kind” mitigation • For stream impacts, mitigate linear foot for linear foot • For wetland impacts, mitigate at the correct ratio for the type and jurisdiction of the wetland to be impacted

49. So, now what?

50. Program Staff Ryan Cassidy East Area Project Manager (317) 234-1221 Liz Elverson Central Area Project Manager (317) 233-2482 Marty Maupin West Area Project Manager (317) 233-2471 Jason Randolph South Area Project Manager (317) 233-0467 James Robb Wetland Mitigation Coordinator (317) 233-8802