The Indiana DNR’s in-lieu fee (ILF) program, the Indiana Stream and Wetland Mitigation Program (IN SWMP) has been approved. The effective date of program approval for the DNR to sell credits is May 3, 2018
Purpose of the ILF program
The Indiana Stream and Wetland Mitigation Program (IN SWMP), is a statewide in-lieu fee program that allows permittee applicants (developers) the option to purchase stream and/or wetland mitigation credits to fulfill compensatory mitigation requirements for permitted impacts authorized under Sections 404 and 401 of the Clean Water Act, Section 10 of the Rivers and Harbors Act, and Indiana’s State Isolated Wetlands law (Indiana Code 13-18-22).
DNR’s program sells “advance credits” to permit applicants who purchase these credits in-lieu of performing mitigation themselves (i.e., permit recipient-responsible mitigation). The legal obligation to provide compensatory mitigation is then transferred to the sponsor of the in-lieu fee program (Indiana DNR) upon receipt of associated credit fees.
DNR’s program is regulated by the Corps under the 2008 Federal Rule (33 CFR Part 332), “Compensatory Mitigation for Losses of Aquatic Resources” (“Mitigation Rule”) as published in the Federal Register by the Corps of Engineers and the U.S. Environmental Protection Agency on April 10, 2008.
Additionally, the Indiana Natural Resources Commission (NRC) adopted new rules allowing for an ILF for permits for construction in a floodway, public freshwater lake or navigable waterway issued by the DNR Division of Water under the Flood Control Act, Lakes Preservation Act or Navigable Waterways Act. While this rule was formally adopted by the NRC, it is not yet in effect. The DNR Division of Fish & Wildlife is working on a non-rule policy document that will assist the DNR and the regulated community on how the ILF option will be carried out.
Previously, these permits required an applicant to restore aquatic resources and habitat either (1) at or near the project site, or (2) using an approved mitigation bank. The ILF program adds a mitigation option for permit applicants.