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 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 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 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
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 lt 0.5 acre OR
• 50 of the cumulative acreage of all individual
  isolated wetlands on the tract lt 0.5 acre
• For Class II this limit is either
• The total acreage of the largest individual
  isolated wetland on the tract lt 0.25 acre, or
• 33 1/3 of the cumulative acreage of all
  individual isolated wetlands on the tract lt 0.25
  acre

21
Size Exemption LimitsExample

• 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

• 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.

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
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

46
(No Transcript)
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
• [phone]
• Liz Elverson
• Central Area Project Manager
• [phone]
• Marty Maupin
• West Area Project Manager
• [phone]
• Jason Randolph
• South Area Project Manager
• [phone]
• James Robb
• Wetland Mitigation Coordinator
• [phone]

51
Questions?

• Andrew Pelloso
• Chief Wetlands and TMDLs
• Office of Water Quality
• Indiana Department of Environmental Management
• P.O. Box 6015
• Indianapolis, Indiana 46206
• Phone [phone]
• Fax [phone]
• E-mail apelloso_at_dem.state.in.us
• Program website
• http//www.in.gov/idem/water/planbr/401/index.html