On February 12, 2024, Indiana Governor Eric Holcomb signed the first piece of legislation to hit his desk in the 2024 legislative session into law. The bill, House Enrolled Act 1383 (“HEA 1383”), makes changes to Indiana’s Isolated Wetlands Program by reclassifying certain protected wetlands to a less regulated class, among other changes. HEA 1383 quickly moved through the legislative process having passed the Indiana House (64-30) on January 23, 2024 and the Indiana Senate (32-17) on February 6, 2024. The new law goes into effect on July 1, 2024.
In Indiana, wetlands are grouped into three classifications. In 2021, state legislators got rid of permitting requirements for Class I wetlands, the lowest quality wetlands which have been previously disturbed by human activity or that support only minimal wildlife, aquatic habitat, or hydrologic function. During that time, state legislators also reduced permitting requirements for Class II wetlands, which support moderate habitat or hydrologic functions but do not contain rare, threatened, or endangered species. HEA 1383 focuses on Class III wetlands, which are found in relatively undisturbed settings or contain rare, threatened, or endangered species. In Indiana, Class III wetlands receive full protections under the law, so developers are required to obtain a state permit to build on them. HEA 1383 redefines select Class III wetlands into Class II wetlands, which means that they no longer have full protection.
The following are notable changes made by HEA 1383:
- The law redefines Class II wetlands to mean either: (1) isolated wetlands that support moderate habitat or hydrological functions, including an isolated wetland that is dominated by native species but is generally without the presence of or habitat for rare, threatened, or endangered species; or (2) certain type of wetlands (i.e., acid bog, acid seep, circumneutral bog, circumneutral seep, cypress swamp, or dune and swale) that are located in a setting more than minimally disturbed by human activity or development or support less than minimal wildlife or aquatic habitat or hydrologic function.
- The law redefines Class III wetlands to mean isolated wetlands that: (1) fall under at least one of the rare and economically important type categories listed in the code (e.g., sand flat, muck flat, panne, etc.); or (2) are located in a setting undisturbed or minimally disturbed by human activity or development and that support more than minimal wildlife or aquatic habitat or hydrologic function and that fall under at least one of the rare and economically important type categories listed in the code (e.g., wet sand prairie, wet floodplain forest, shrub swamp, etc.).
- The law exempts Class II wetlands that are: (1) not located within the boundaries of a municipality and have an area of not more than more than 3/8ths of an acre; or (2) located within the boundaries of a municipality and have an area of not more than 3/4ths of an acre from regulation.
- The law provides that wetland activity in a nonexempt Class II wetland that does not qualify for a general permit must be authorized by an individual permit.
- The law removes the requirement that the maintenance of field tile within a Class III wetland must be authorized by a general permit.
- The law eliminates certain wetland rulemaking requirements.
- The law clarifies the type of compensatory mitigation that may be offered to offset certain wetland activity, such as creation or restoration of a wetland by the permittee, bank credits, and in lieu fee credits.
- The law codifies compensatory mitigation credits for created or restored exempt isolated wetlands as well as nonexempt Class II or Class III isolated wetlands that are not impacted and that are protected with a deed restriction or conservation easement.
Supporters of the new law believe it will bring a necessary compromise between wetland preservation and economic growth by reducing costs and preventing permitting delays. On the other hand, those that oppose the law think it further weakens wetland protections in the state by giving developers the ability to build on and destroy more wetlands.
Note that HEA 1383 does not impact the federal regulation of wetlands in Indiana. As a result, property owners are still required to comply with CWA Section 404 Dredge and Fill Permit as it relates to federally jurisdictional wetlands. Additionally, a CWA Section 401 Water Quality Certification is still required from IDEM demonstrating that the proposed filling of jurisdictional wetlands will not degrade or otherwise violate Indiana’s water quality standards.
The new law is available on the Indiana General Assembly website and can be viewed here.
Article by: Lauren Baldwin, Ice Miller LLP
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