By Don Snemis, Ice Miller LLP
Senate Bill 389 was approved by the Indiana Senate on April 14 after concurrences from the Indiana House. At the time of this writing, the bill is still awaiting Governor Holcomb’s signature. If signed, the new law would make significant changes to Indiana’s Isolated Wetlands Program as well as lesser changes to the 401 Water Quality Certification Program.
Earlier versions of the bill would have repealed Indiana’s Isolated Wetlands program altogether, leaving non-jurisdictional wetlands completely unregulated by the State of Indiana. At the last minute, SB 389 was substantially revised. If enacted, it will reduce but not completely remove state regulation of isolated wetlands.
The new law would exempt all Class I wetlands from state regulation. Class I wetlands are those that have been previously disturbed by human activity or that support only minimal wildlife, aquatic habitat, or hydrologic function. SB 389 also exempts Class II wetlands that are not more than 3/8ths of an acre (0.375) from regulation. Class II wetlands are those support moderate habitat or hydrological functions but are without the presence of, or habitat for, rare, threatened, or endangered species. If multiple Class II wetlands are found on a tract, additional restrictions apply. Also, dredge and fill activities in a Class II wetland not more than 3/4ths of an acre that are located within a municipality are exempt. SB 389 also codifies an “in lieu fee” program for compensatory mitigation in situations where impacts upon Class II or Class III wetlands are necessary.
SB 389 also provides that if cropland has been used for agricultural purposes for the five years immediately preceding development (or 10 years if the US Corps of Engineers has confirmed that the site contains no jurisdictional waters), the development of the cropland is exempt from isolated wetlands permit requirements.
The bill also states that the maintenance of field tile within a Class II or III wetland shall be authorized by a general permit. Further, the law would reduce IDEM’s statutory deadline for issuing or denying an Isolated Wetlands Permit from 120 to 90 days.
If signed, the new law would also create the “Indiana Wetlands Task Force” to research and develop recommendations on (1) reducing the costs incurred by builders in complying with wetlands regulations; (2) the flood reduction benefits of isolated wetlands; (3) the role of isolated wetlands in storing carbon dioxide; (4) strategies to avoid isolated wetland impact during development; (5) strategies to incentivize the preservation of existing isolated wetlands; (6) improvements to the isolated wetlands permitting process; (7) review and recommend improvements to mitigation ratios; and (8) review and recommend improvements to the current “in lieu of” compensatory mitigation program.
Finally, SB 389 reduces IDEM’s time to process a Section 401 application from 120 to 90 days. Failure to decide within 90 days constitutes waiver of the certification. However, the new law would require applicants to contact the department to request a “pre-coordination” meeting 30 days before applying.
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