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The Indiana Department of Environmental Management (IDEM) is responsible for issuing water quality certifications in Indiana. Section 401 of the federal Clean Water Act (CWA) requires any applicant for a federal permit to conduct any activity that may result in a discharge of pollutants to water to first obtain a water quality certification (WQC) from the state. Effectively, this means that anyone wishing to discharge pollutants to wetlands or other water bodies through activities such as filling, excavating or mechanical clearing, must first receive authorization from the state.
Most of the applications for federal permits that trigger the need for WQC are Department of the Army permit applications. These permits are issued pursuant to section 404 of the CWA by the U.S. Army Corps of Engineers. IDEM works closely with the U.S. Corps of Engineers and coordinates the permit application process as much as possible. Therefore, IDEM recommends that any potential applicant first contact the Corps to begin the application process and determine whether a federal permit is required. However, because both agencies have somewhat different authority/ jurisdiction, both agencies need to be contacted before any discharge to or activity in a wetland or other water body occurs. If the Corps of Engineers decides a federal permit is needed, then the person must obtain a Section 401 Water Quality Certification from IDEM. IDEM will review the proposed activity to determine if it will comply with Indiana law, including state water quality standards.
IDEM will require the applicant to avoid impacts if possible, minimize any unavoidable impacts and provide compensatory mitigation for any remaining adverse impacts to wetlands and other waters. IDEM will deny water quality certification if the applicant cannot show that its discharge will comply with state law and may cause violations of water quality standards. As an example, IDEM may deny certification if the impact can be avoided or the applicant's proposed compensatory mitigation cannot offset adverse impacts to water quality. A person may not proceed with a project until he or she has received a certification (or other authorization) from IDEM.
If the Corps determines that a federal permit is not needed under section 404 of the CWA, then another form of authorization from IDEM will probably be needed. This is likely to be the case for "isolated wetlands" where the Corps has determined that it has no basis for federal jurisdiction. Again, because the federal government's jurisdiction is different than the state's, IDEM must be contacted to determine what, if any, state authorization is needed before an applicant may legally discharge pollutants (including fill material) to a wetland.
The goal of the Section 401 WQC Program is to protect the water quality of all Indiana waters by fair, efficient, and timely review of applications, to require avoidance of impacts to water resources, minimization of impacts which are unavoidable, and mitigation of all remaining impacts to insure no net loss of wetlands and no degradation of water quality.
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