A wetland is an area of land that is either permanently, seasonally, or intermittently flooded by water. These biological ecosystems are typically defined by three main characteristics:
- The presence of soil saturated by water.
- The presence of water-tolerant plants.
- The presence of water itself.
There are many different types of wetland ecosystems in Indiana, such as bogs, fens, swamps, marshes, and forested wetlands. Wetlands can be either forested or non-forested. One common myth about wetlands is that they always have surface water present. However, many wetlands have annual periods in which they are dry.
Wetlands provide a variety of ecological functions to the environment. Wetlands provide habitat to many wildlife species, including migrating birds and waterfowl. Wetlands are not only important to wildlife, but they can be natural flood controllers, acting like sponges in the landscape as they capture, store, and slowly release run-off water. Wetlands also filter pollutants and are a source of groundwater recharge.
The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.
The key to implementation of the regulatory requirements (both federal 401/404 and State Regulated Wetland) for projects that add dredged or fill material to waters is the U.S. Army Corps of Engineers (USACE) determination of whether impacted waters are federally jurisdictional.
- USACE’s most recent (2008) guidance on making jurisdictional determinations (JDs) using the pre-2015 WOTUS regulatory regime
This change (reversion to pre-2015) WOTUS makes it even more imperative for project proponents to get a jurisdictional determination (JD) from the USACE to ensure the appropriate regulations are applied and correct permits/certifications are received prior to impacting waters with dredged or fill material. For JDs that identify waters of the state, coordination with IDEM is highly recommended so wetland classifications and exemptions may be verified.
With a jurisdictional determination from the Corps, IDEM will:
- For a Water of the United States, continue to apply the U.S. EPA/USACE federal requirements to process an application for 401 WQC.
- For a water of the state, continue to apply the requirements of the State Regulated Wetland Law, including the changes made with SEA 389.
For more information about wetlands and IDEM’s regulatory role: