Individual permits for wetland activity; adoption of rules
Sec. 3. (a) An individual permit is required to authorize a wetland activity in a Class III wetland.
(b) Except as provided in section 4(a) of this chapter, an individual permit is required to authorize a wetland activity in a Class II wetland.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 not later than June 1, 2005, to govern the issuance of individual permits by the department under subsections (a) and (b).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004, SEC.6.
General permits for wetland activities; adoption of rules
Sec. 4. (a) Wetland activities with minimal impact in Class I wetlands and Class II wetlands, including the activities analogous to those allowed under the nationwide permit program (as published in 67 Fed. Reg. 2077-2089 (2002)), shall be authorized by a general permit rule.
(b) Wetland activities in Class I wetlands shall be authorized by a general permit rule.
(c) The board shall adopt rules under IC 4-22-2 and IC 13-14 not later than February 1, 2005, to establish and implement the general permits described in subsections (a) and (b).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004, SEC.7.
Contents of wetland rules
Sec. 5. (a) The rules adopted under section 3 of this chapter:
(1) must require that the applicant demonstrate, as a prerequisite to the issuance of the permit, that wetland activity:
Standards for compensatory mitigation
Sec. 6. (a) Except as otherwise specified in subsections (b) and (c), compensatory mitigation shall be provided in accordance with the following table:
Wetland Replacement On-site Off-site
Class Class Ratio Ratio
Class I Class II or III 1 to 1 1 to 1
Class I Class I 1.5 to 1 1.5 to 1
Department action on wetland permits; department action before adoption of wetland rules; forms
Sec. 7. (a) The department shall:
(1) administer the permit programs established by this chapter; and
(2) review and issue decisions on applications for permits to undertake wetland activities in state regulated wetlands in accordance with the rules issued by the board under this chapter.
(b) Before the adoption of rules by the board under this chapter, the department shall:
(1) issue individual permits under this chapter consistent with the general purpose of this chapter; and
(2) for wetland activities in Class I wetlands, issue permits under this subsection:
(A) that are simple, streamlined, and uniform;
(B) that do not require development of site specific provisions; and
(C) promptly upon submission by the applicant to the
department of a notice of registration for a permit.
(c) Not later than June 1, 2004, the department shall make available to the public:
(1) a form for use in applying for a permit under subsection (b)(1); and
(2) a form for use in submitting a notice of registration for a permit to undertake a wetland activity in a Class I wetland under subsection (b)(2).
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004, SEC.9.
Department action on wetland permits; effective dates of permits; amended permit application
Sec. 8. (a) Subject to subsection (f), the department shall make a decision to issue or deny an individual permit under section 3 or 7(b)(1) of this chapter not later than one hundred twenty (120) days after receipt of the completed application. If the department fails to make a decision on a permit application by the deadline under this subsection or subsection (f), a permit is considered to have been issued by the department in accordance with the application.
(b) A general permit under section 4 of this chapter becomes effective with respect to a proposed wetland activity that is within the scope of the general permit on the thirty-first day after the department receives a notice of intent from the person proposing the wetland activity that the wetland activity be authorized under the general permit.
(c) Except as provided in subsection (d), a permit to undertake a wetland activity in a Class I wetland under section 7(b)(2) of this chapter is considered to have been issued to an applicant on the thirty-first day after the department receives a notice of registration submitted under section 7(b)(2) of this chapter if the department has not previously authorized the wetland activity.
(d) The department may deny a registration for a permit for cause under subsection (c) before the period specified in subsection (c) expires.
(e) The department must support a denial under subsection (a) or (d) by a written statement of reasons.
(f) The department may notify the applicant that the completed application referred to in subsection (a) is deficient. If the department fails to give notice to the applicant under this subsection not later than fifteen (15) days after the department's receipt of the completed application, the application is considered not to have been deficient. After receipt of a notice under this subsection, the applicant may submit an amended application that corrects the deficiency. The department shall make a decision to issue or deny an individual permit under the amended application within a period that ends a number of days after the date the department receives the amended application equal to the remainder of:
(1) one hundred twenty (120) days; minus
Designation of Class III wetland as outstanding state protected wetland; rules; restrictions on wetland owner; rescission of designation
Sec. 9. (a) The owner of a Class III wetland may petition the board for designation of the wetland as an outstanding state protected wetland. Upon verification by the board that the wetland is a Class III wetland and that the petitioner is the owner of the wetland, the board shall conduct a proceeding under IC 4-22-2 and IC 13-14 to adopt a rule designating the wetland as an outstanding state protected wetland.
(b) A rule adopted by the board under subsection (a) must specifically identify each wetland to be designated as an outstanding state protected wetland, including:
(1) the wetland type;
(2) a legal description of the wetland as delineated; and
(3) other information considered necessary by the board.
(c) The owner of a Class III wetland designated as an outstanding state protected wetland under this section shall:
(1) not cause or allow any anthropogenic activities on the property on which the wetland is located that may adversely affect or degrade the wetland, except for activities with minimal and short term effect, such as construction of an observation pathway or installation of an underground pipeline that are:
(A) authorized by rules adopted by the board; or
(B) approved by the department in the absence of rules under clause (A); and
(2) provide for the long term assurance of the protections described in subdivision (1) through:
(A) a restrictive covenant that is recorded with respect to the property on which the delineated wetland is located; or
(B) a grant of title to or a conservation easement in the property on which the delineated wetland is located to:
(i) the department of natural resources; or
(ii) a nonprofit entity with demonstrated ability in the maintenance and protection of wetlands.
(d) Notwithstanding the designation of a wetland under this section by the board as an outstanding state protected wetland, the owner of a Class III wetland may petition the board for rescission of the designation if the owner can demonstrate important social or economic needs that warrant adverse effects to the wetland. In its review of the petition, the board shall give great weight to a resolution of the legislative body of the municipality or county in which the Class III wetland is located describing important social or economic needs, the accomplishment of which would necessitate
adverse effects to the wetland.
As added by P.L.282-2003, SEC.38.
Department authority over wetlands
Sec. 10. (a) Except as provided in subsection (b), the department has no authority over the:
(2) draining; or
(3) elimination by other means;
before January 1, 2004, of a wetland that would have been an isolated wetland.
(b) The department has authority over wetland activities in an isolated wetland, including an exempt isolated wetland, that are subject to the provisions of:
(1) a National Pollutant Discharge Elimination System (NPDES) permit issued by the department under 33 U.S.C. 1342;
(2) an agreed order under IC 13-30-3-3, consent order, or consent decree executed by the department and the regulated party;
(3) an order issued under IC 13-30-3-4; or
(4) a judgment of a court enforcing or upholding an enforcement order or decree described in subdivision (2) or (3);
that became effective before January 1, 2004.
As added by P.L.282-2003, SEC.38. Amended by P.L.52-2004, SEC.11.
Applicability of chapter to certain isolated wetlands
Sec. 11. When land referred to in IC 13-11-2-74.5(a)(7) is no longer subject to United States Department of Agriculture wetland conservation rules:
(1) isolated wetlands located on the land are subject to this chapter; and
(2) any past wetland activities in the isolated wetlands located on the land become subject to this chapter, unless the wetland activities were in compliance with United States Department of Agriculture wetland conservation rules.
As added by P.L.282-2003, SEC.38.