In April, 2021, the State of Indiana adopted a new law concerning the regulation of interstate wetlands. Senate Bill 389 (“SB 389”) alters the permitting requirements for wetland permits issued by the Indiana Department of Environmental Management (“IDEM”). Under SB 398, more activities will be exempted from permit requirements, including certain agricultural activities.
Wetland Regulation in Indiana
In general, there are two types of wetlands located in Indiana – those that are regulated by the federal Clean Water Act (“CWA”), and those which are not. While the regulation of wetlands under the CWA has changed over the years, the current rule states that only those wetlands which are adjacent to other waters protected by the CWA fall under its protection. “Adjacent wetlands” include those wetlands which touch a protected waterbody, or are only separated from a protected waterbody by a barrier that still allows for some surface connection between the two. Any wetland in Indiana that does not fall into the “adjacent wetland” category is not regulated by the CWA, and is instead regulated by the state. Indiana generally refers to those wetlands which are not regulated by the CWA as “isolated wetlands.”
Wetlands regulated by the state of Indiana are further broken up into three additional categories – Class I, Class II, and Class III. A Class I wetland is defined as either a wetland which has had at least fifty percent of its area disturbed by human activity, or a wetland that supports only minimal wildlife or aquatic habitat and has not been designated as critical habitat under the Endangered Species Act. A Class II wetland is either a wetland is not a Class I or Class III wetland, or a wetland that would otherwise meet the definition of a Class I wetland if it were not rare or ecologically important. Finally, a Class III wetland is one which is either located in an area that has been undisturbed or minimally disturbed by human activity and supports more than a minimal amount of wildlife, or is a type of wetland that is considered rare and ecologically important, such as an acid bog or cypress swamp.
Under Indiana state law, if a party wishes to take an action that could impact a wetland, that party may need to acquire a wetland permit from the state. Prior to seeking a permit, a landowner in Indiana will first need to determine if a wetland is present on their property. IDEM recommends that landowners hire a wetland consultant to determine whether a wetland is present. The consultant will develop a wetland delineation report which gets submitted to the U.S. Army Corps of Engineers (“Corps”) for a final determination. The Corps will then issue a letter to the landowner stating whether a wetland is present and if the wetland falls under federal CWA jurisdiction. If the wetland does fall under federal jurisdiction, the landowner may be required to apply to the Corps for a permit. However, if the wetland does not fall under federal jurisdiction, the landowner will apply to IDEM if a state wetland permit is needed.
There are a variety of activities that may require a wetland permit from IDEM, including depositing dredged or fill material into isolated wetlands, or impacts to any Class III wetlands. Some activities are covered by Isolated Wetland General Permits, such as minimal impact activities to Class I and Class II wetlands. If an activity is covered by a general permit, then the landowner does not need to obtain an individual wetland permit from IDEM in order to carry out the activity.
Along with obtaining a wetland permit, a landowner in Indiana may also be required to mitigate any impact to existing wetlands. According to Indiana law, the goal overall goal of the state wetland permitting program is to “assure that compensatory mitigation will offset the loss of isolated wetlands[.]” IC 13-18-22-1(c)(2). Mitigation may involve constructing a new wetland or paying into a wetland mitigation program run by the Indiana Department of Natural Resources. A table providing the ratios for compensatory mitigation of different categories of wetlands can be found at IC 13-18-22-6.
Senate Bill 389
SB 389 was officially signed into law on April 21, 2021 with a retroactive effective date of January 1, 2021. Primarily, SB 389 affects the regulations of Class I and Class II wetlands. The law has very little impact to Class III wetlands.
Prior to the enactment of SB 389, Class II wetlands were exempt from permitting requirements if they were smaller than one quarter of an acre. Under SB 389, Class II wetlands are exempt from permitting if they are smaller than three-eighths of an acre. Additionally, dredge and fill activities on a Class II wetlands are exempted from permitting requirements if the wetland is three quarters of an acre or smaller and is located within a municipality. Under SB 389, all Class I wetlands are exempted from state regulations. If a producer or landowner wishes to engage in activity that will impact a Class I isolated wetland, they no longer need a wetland permit from IDEM in order to do so.
Along with exempting certain wetlands from permitting requirements, SB 389 also exempts permitting requirements for ephemeral steams, and development of cropland. SB 389 defines “ephemeral stream” as “surface water flowing or pooling only in direct response to precipitation such as rain or snowfall.” It defines “cropland” as farmland that is “cultivated for agricultural purposes; and from which crops are harvested.” According to SB 389, the development of cropland will not require a wetland permit if the cropland has been used for agricultural purposes in the five years immediately preceding the development, or in the ten years immediately preceding the development if the Corps has issued a determination that the cropland does not contain wetlands that are subject to federal CWA jurisdiction. SB 389 also provides that field tile within a Class II or III wetland shall be authorized under a general permit.
Finally, SB 389 altered some procedural aspects of Indiana’s wetland permitting program. IDEM will now only have 90 days to either issue or deny an Isolated Wetlands Permit instead of 120. The law also establishes a 14-member Wetland Task Force that is charged with researching and developing recommendations on wetlands issues that will be presented to the Indiana General Assembly.
Going Forward
Under the new legislation, farmers in Indiana will not be required to seek individual wetland permits for activity that impacts Class I isolated wetlands or small Class II isolated wetlands. Additionally, farmers will be able to maintain field tiles so long as they meet the general permit requirements.
Opponents to SB 389 have criticized the law for reducing the amount of protection provided to isolated wetlands within Indiana. Currently, no legal challenges have been brought against SB 289, but at least one party has expressed the intent to explore possibly legal action under the CWA.
To read SB 389, click here.
To read Indiana state law concerning wetlands, click here.
For additional National Agricultural Law Center resources on the CWA, click here.