This page provides basic information regarding the scope of IDEM's Section 401 Water Quality Certification program. It is intended to answer basic questions and frequently asked questions (FAQs) regarding IDEM's authority, regulated activities, and other information concerning the program's implementation. Since this is an overview, we recommend that you contact IDEM program staff if you have project-specific questions or other questions not specifically addressed on this page.
What is the purpose of a Section 401 Water Quality Certification?
Applicants receiving a Section 404 dredge and fill permit from the U.S. Army Corps of Engineers or a license from the Federal Energy Regulatory Commission (FERC) are required to first obtain a Section 401 Water Quality Certification from IDEM. Issuance of a Water Quality Certification means that IDEM anticipates that an applicant's project will comply with state water quality standards and other aquatic resource protection requirements under IDEM's authority. The 401 Water Quality Certification can cover both the construction and operation of the proposed project. All conditions imposed in the 401 Water Quality Certification become conditions of the Federal permit (U.S. Army Corps of Engineers 404 permit) or FERC license. An applicant may not proceed with any regulated projects until they have received 401 Water Quality Certification from the state and a permit from the federal agency.
What exactly is a Section 401 Water Quality Certification?
A Section 401 Water Quality Certification (WQC) is a license under the Indiana Administrative Orders and Procedures Act (AOPA). A WQC will usually contain conditions which the applicant must comply with in order to assure that the activity/impacts will comply with applicable law, including state water quality standards. Water Quality Certifications are subject to the administrative appeals process set forth in Indiana Code 4-21.5-3-5 of AOPA.
What types of activities require the need for a Corps' Section 404 Dredge and Fill Permit and an IDEM Section 401 Water Quality Certification?
You need to apply for, and receive, an IDEM Section 401 Water Quality Certification and a Corps' Section 404 Dredge and Fill Permit if you are planning any of the following:
- Filling a wetland
- Excavating a wetland
- Mechanical clearing in a wetland (using heavy equipment such as bulldozers to remove or clear trees and stumps)
- Constructing a pond in a wetland
- Stabilizing a streambank or shoreline
- Relocating a stream
- Constructing a roadway, bridge or other pedestrian/vehicle crossing in or over a stream
- Constructing, refacing, or repairing any seawall
- Constructing an underwater beach
- Filling out into a lake, stream, or river
- Dredging a wetland, stream, lake, or river
- Dredging or excavation of any potentially contaminated sediments.
- Sand, gravel, peat, or other related mining activity within any waterbody.
- Channelizing or removing meanders from any stream, ditch, or river.
- Excavating a stream to construct in-stream storm water detention/retention.
- Construction of any type of permanent or temporary dam, causeway, or other related structure.
This list is NOT all-inclusive. There are other activities that trigger the need for Section 401 Water Quality Certification from IDEM and a Section 404 Dredge and Fill Permit from the U.S. Army Corps of Engineers, but the aforementioned activities are more common.
How do I know if I have wetlands on my property/project site?
Wetlands do not have to have standing water in them in order to be regulated by IDEM and the U.S. Army Corps of Engineers. Determining the boundaries of wetlands is a task that must be conducted by a qualified wetland consultant. Wetlands are delineated by carefully examining a site for the presence of wetland indicators. In order to be a legal wetland, an area must have all three of the following present:
- A dominance of wetland vegetation
- The presence of soils exhibiting hydric characteristics
- Indicators of hydrology (the presence of surface water or waterlogged soils) for a sufficient period of time in most years to influence the types of plants and soils that occur in that area, in order to legally be considered a wetland.
In order to know if wetlands are on your property, you must hire a wetland or environmental consultant to conduct a wetland delineation on the property. The wetland consultant will put together a report for you, called a wetland delineation report. This report must be submitted to the U.S. Army Corps of Engineers for review and approval before the delineation report is considered accurate and legal. The U.S. Army Corps of Engineers has the responsibility of making wetland determinations and determining the limits of federal jurisdiction. The U.S. Army Corps of Engineers will write a letter to you once they have reviewed your wetland delineation report – this letter will state the jurisdiction of the delineated wetlands and will also state whether or not the U.S. Army Corps of Engineers concurs with the delineation. Keep this letter, and your wetland delineation report, in a safe place as you will need to submit a copy of both to IDEM if you wish to apply for a Section 401 Water Quality Certification.
How do I hire an environmental/wetland consultant?
IDEM can provide you with a list of environmental consultants who work in Indiana. The consultants included on this list are not recommendations of IDEM. Specifically, IDEM makes no endorsement or representation of any qualifications or lack of qualifications by any of the attached individuals or companies. Any firm that asks to be included is included without review of qualifications. You should investigate these businesses similar to any other service or establishment that you would deal with.
When interviewing consultants, you should carefully evaluate their qualifications. IDEM has put together the following suggestions to help you make a selection:
- Check credentials. If you are looking for someone to help identify and locate wetlands, find out whether or not the consultant has a good background in hydrology, soil science, ecology, and (especially important) botany (plant identification). The consultant you select should have the ability to apply wetland identification methods required by state and federal agencies. Make sure that the consultant can identify wetlands and their boundaries consistent with regulating agencies.
- Make sure the consultant is knowledgeable. Is the wetland consultant familiar with local, state, and federal wetland regulations? Is this wetland consultant experienced with IDEM and the U.S. Army Corps of Engineers? Another way to ask this: Does the consultant or individual know the project managers at IDEM and the U.S. Army Corps of Engineers by name?
- Examine workmanship. Ask the wetland consultant for examples of previous work similar to the services you are requesting. What type of track record does this company or individual have with local, state, and federal agencies? Request references that include clients who have had projects reviewed and approved by IDEM. Check all references.
- Ask others. Ask colleagues and other businesses, such as real estate, development, homebuilders, etc. that are routinely involved in wetland concerns. Ask them about their experiences and knowledge regarding the wetland consultant you are considering.
- U.S. Army Corps of Engineers - Louisville District: Consultants List
- Association of State Wetland Managers: How to Hire the Right Wetlands Consultant"
How do I apply for a Section 401 Water Quality Certification?
Application forms are available for download on our application page. You may wish to hire an environmental consultant to determine your scope of impacts, prepare your application for Section 401 Water Quality Certification, and submit your application along with all required enclosures (maps/plans/figures) that must be included with your application form.
Which application form do I need to use?
If your project proposes minimal impacts to Waters of the U.S., your project may be eligible to use IDEM's Regional General Permit (RGP) Notification Form (available on the IDEM Forms page). If your project meets the Terms and Conditions of the Regional General Permit Notification Form, you can apply for Section 401 Water Quality Certification by submitting this IDEM RGP Notification Form.
If your project does NOT meet all of the Terms and Conditions of the RGP Notification Form, you must apply for a site-specific Individual Section 401 Water Quality Certification. To apply for a site-specific Individual Section 401 Water Quality Certification, you must use the Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (available on the IDEM Forms page). It is likely that mitigation will be required for site-specific Individual Section 401 Water Quality Certifications.
Applications are available for download from our application page.
What is mitigation?
Applicants must demonstrate to IDEM that the impacts and their applications are necessary. If an applicant is unable to completely avoid impacts, they must demonstrate how their proposed project and unavoidable impacts to wetlands and Waters of the U.S. have been minimized. Applicants must provide compensatory mitigation for any remaining adverse impacts to wetlands and other Waters of the U.S.
Compensatory mitigation is the last step in the previously mentioned three-step approach of (1) avoidance, (2) minimization, and (3) compensation. The purpose of mitigation is to compensate for unavoidable impacts to wetlands, streams, lakes, rivers, and other Waters of the U.S.
Compensatory actions are actions taken that provide some form of substitute aquatic resource for the impacted aquatic resource. Compensatory mitigation may involve:
- Restoration of existing degraded wetlands or areas that were previously wetland
- Creation of new wetlands
- Stream restoration activities
- Preservation of existing wetland and streams, when utilized in conjunction with creation or restoration
- Preservation or restoration of upland buffers adjacent to surface waters, when utilized in conjunction with creation or restoration
- Enhancement of existing wetlands
There are minimum success criteria that all wetland mitigation sites must meet. The IDEM Nonrule Policy Document, Minimum Success Criteria for Wetland Compensatory Mitigation (NPD Water-010, available on the IDEM Nonrule Policies page) was put into effect on September 8, 2006.
Why does IDEM require compensatory mitigation?
IDEM frequently requires an applicant to perform compensatory mitigation (wetland & stream replacement or restoration) when an applicant proposes to fill an existing wetland or impact an existing stream, lake, river, or other Water of the U.S. Indiana's antidegradation rules require existing uses of all Waters of the U.S. to be maintained and protected; they also prohibit any degradation of water quality that would interfere with or become injurious to existing and potential uses; see 327 IAC 2-1-2 and 327 IAC 2-1.5-4. Filling a wetland eliminates its existing and potential uses. Therefore, IDEM would not be maintaining and protecting the uses of that Water if IDEM did not require replacement of the filled wetland. Additionally, the filled wetland would violate the state's narrative minimum surface water quality standards (327 IAC 2-1-6 and 327 2-1.5-8) if mitigation were not provided for its impact.
In other words, compensatory mitigation provides IDEM with the flexibility to authorize projects that IDEM would otherwise have to deny for violating the antidegradation rules and minimum water quality standards.
Does IDEM use set mitigation ratios / have specific mitigation requirements?
In general, IDEM requires that impacted wetlands be replaced with wetlands of the same type (e.g., a forested wetland that is filled must be replaced with a forested wetland). However, IDEM may, under limited circumstances and in rare occasions, allow an applicant to create or restore a different type of wetland or aquatic habitat if that "out-of-kind" mitigation will provide better water quality.
The compensation ratios below have been determined by IDEM to be adequate to achieve the statutory goal of “no net loss” of wetlands for wetland impacts regulated under the Clean Water Act. IDEM recommends applicants use these ratios. IDEM may consider alternative ratios, but an applicant must justify the proposed ratios through an adequate technical demonstration showing that the proposed ratios would achieve no net loss.
- 4 acres compensation required for each 1 acre of impact (4:1) for forested wetland impacts
- 4:1 and above for unique or rare wetlands such as bogs, fens, etc.
- 3:1 for scrub-shrub wetland impacts
- 2:1 for emergent wetland impacts
- 1:1 for open water and other Waters of the U.S. impacts
- 1:1 (foot for foot) for stream impacts
The larger ratios (e.g., 4:1) reflect the increased difficulty of recreating the type of wetland destroyed and the temporal loss associated with the time it takes to create the wetland. In some cases IDEM will not permit mitigation at any ratio, regardless of the wetland type, if the proposed project would degrade water quality in such a manner that mitigation could not offset the loss of protected uses.
Alternative mitigation ratios are required for impacts to isolated wetlands (those wetlands not regulated under the Clean Water Act) that are permitted under Indiana's State Isolated Wetlands Law.
How much are the application fees for Section 401 Water Quality Certification?
There is, currently, no fee to apply for a Section 401 Water Quality Certification.
Where do I send my application form?
Send your application form via certified mail to the Office of Water Quality Wetlands and Storm Water Section.
What do I have to submit with my application form?
Required enclosures and submittals are specified on Page 2 of the IDEM Regional General Permit Notification Form (available on the IDEM Forms page).
If you are submitting the Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (available on the IDEM Forms page), please refer to Page 2 of the application. All required enclosures and submittals are specified in Section 6 (Drawing/Plan Requirements) and Section 7 (Supplemental Application Materials) of the application.
How can I avoid delays in the IDEM review process?
It is strongly recommended that you contact the IDEM project manager for the county you are working in if the scope of your proposed activities will require you to use the Application for Authorization to Discharge Dredged or Fill Material to Isolated Wetlands and/or Waters of the State (available on the IDEM Forms page)and receive a site-specific Individual Section 401 Water Quality Certification.
Additionally, it is recommended that you contact IDEM to set up a pre-application meeting, either in our office or out on your site, to discuss your project. IDEM staff will meet with you, as time allows, to discuss your proposed project. Complex projects with a larger scope of impact may have priority over pre-application meetings for smaller projects.
IDEM cannot process any application proposing impacts to wetlands without a copy of a wetland delineation report and a copy of correspondence from the U.S. Army Corps of Engineers stating the jurisdiction of the wetlands. If you submit an application to IDEM proposing wetland impacts without a copy of U.S. Army Corps of Engineers correspondence, your application will be rejected by the IDEM project manager who reviews the application.
Correspondence from the U.S. Army Corps of Engineers can include: jurisdictional determination letters received through U.S. Mail, jurisdictional determination e-mails, or project approval letters received through U.S. Mail.
Be sure to also check out Project Planning Tips recommended by IDEM.
What can I expect once I've sent in my application form?
First, be sure to submit your application form to IDEM via certified mail to ensure that it is received by the agency.
For Regional General Permit Notification Form submittals (form available on the IDEM Forms page), IDEM has thirty (30) days from the date of receipt of the notification form to review the form and your submittals for completeness and accuracy. You will be contacted within thirty (30) days of the date of receipt of your form only if problems are identified. If you are not contacted by IDEM within thirty (30) days of the date of receipt of the form by IDEM, your project is thereby authorized, subject to the terms and conditions of the Section 401 Water Quality Certification. You will not receive a written confirmation of authorization from IDEM. Keep your certified mail receipt as proof of your submission.
For submittals of the Application for Authorization to Discharge Dredged or Fill Materials to Isolated Wetlands and/or Waters of the State(available on the IDEM Forms page), upon receipt of the application form, IDEM staff will review the form and required enclosures for completeness and accuracy. If any deficiencies are noted in your application, IDEM staff will send a Letter of Deficiency (LOD) to both the applicant and agent noted on the application form. In the interest of time, IDEM staff may send a LOD email to both the applicant and agent instead of a LOD sent through U.S. Mail. Once IDEM has a complete application, the agency has one hundred twenty (120) days to make an agency decision (approval or denial), and is a required 21-day public notice period required as part of the 120 day review. Greater than 80% of agency decisions are sent in less than 90 days.
Is there an opportunity to comment on applications for individual, site-specific Section 401 Water Quality Certification?
All applications for a site-specific Individual Section 401 Water Quality Certification are subject to public comment. As stated above, IDEM will issue a public notice allowing 21 days for comments on water quality to be submitted to IDEM. In certain instances for projects with extensive or unique environmental impacts, the U.S. Army Corps of Engineers will issue a joint public notice in lieu of IDEM's public notice. Notice is generally sent to adjacent landowners, various regulatory agencies and those who have requested notice. All public notices are also posted electronically on IDEM's Web site.
In addition to submitting comments on water quality, interested parties may also request a public hearing on the application. If there is significant public interest in the application or if substantial questions or new information pertaining to water quality issues are raised, then IDEM may hold a public hearing.
Will I receive a document in writing stating that my application has been approved or denied?
For Regional General Permit Notification Form submittals (for available on the IDEM Forms page), if your project does not meet the terms and conditions of the Notification Form, then IDEM will send an “Out-of-Scope” letter to both the applicant and agent noted on the application form. If your project does meet the terms and conditions of the RGP Notification Form, you will not receive a written confirmation of authorization for IDEM. Keep your certified mail receipt as proof of your submission.
For submittals of the Application for Authorization to Discharge Dredged or Fill Materials to Isolated Wetlands and/or Waters of the State (available on the IDEM Forms page), after IDEM has reviewed the project, you will receive from IDEM, via certified mail, either a written approval or denial of Section 401 Water Quality Certification.
What types of conditions might IDEM impose as part of an approval of Section 401 Water Quality Certification?
Typical “special conditions” include minimization of impacts, compensatory mitigation for wetland and stream impacts, monitoring requirements for required compensatory wetland and/or stream mitigation, establishment of buffer zones around waterbodies, prohibitions on work during certain periods of the year, the implementation of storm water management measures, including erosion control and sediment control measures, and additional monitoring or water quality studies. Section 401(d) of the Federal Clean Water Act requires states to lay out, in the certification approval, any limitations or requirements necessary to ensure that the applicant will comply with all appropriate requirements of state law. These conditions laid out by IDEM as part of the Section 401 Water Quality Certification approval also become conditions of the federal permit.
When does IDEM deny Section 401 Water Quality Certification?
IDEM may deny Section 401 WQC if an application is incomplete, if an impact can be avoided or is deemed unnecessary, or if an applicant's proposed compensatory mitigation will not offset adverse impacts to water quality. An IDEM Non Rule Policy Document, Reasons for Denial (NPD Water-011, available on the IDEM Nonrule Policies page), was put into effect on April 13, 2007. A person may not proceed with their project until he or she has received a Section 401 Water Quality Certification (or other authorization) from IDEM.
How do I contact the U.S. Army Corps of Engineers?
There are three (3) districts of the U.S. Army Corps of Engineers located in Indiana. The Detroit District of the U.S. Army Corps of Engineers covers the northern portions of the state. The Chicago District of the U.S. Army Corps of Engineers covers a small portion of northwest Indiana primarily associated with the drainage area of Lake Michigan. The Louisville District of the U.S. Army Corps of Engineers covers the majority of the state except for northern counties covered by Chicago and Detroit.
Information and jurisdictional maps related to each U.S. Army Corps of Engineers District is available on the U.S. Army Corps of Engineers page.
Are there any other permits I might need to apply for if I want to work in a wetland, stream, lake, river, or other Water?
The granting of Section 401 Water Quality Certification from IDEM does not relieve you of the responsibility of obtaining any other state, local or federal authorizations. The Indiana Department of Natural Resources (IDNR) Division of Water (DOW) have their own permitting mechanism for working in Indiana Streams, Lakes, and Floodways; your project may require a Construction in a Floodway Permit or a Public Freshwater Lake Permit from IDNR. More than 50% of the projects requiring IDEM Section 401 Water Quality Certification will also require a Construction in a Floodway Permit from IDNR.
You may also need a permit from your County Surveyor if you wish to work in a stream or river that your county has determined to be a “legal drain.”
Additionally, if you are planning to disturb an acre or more of soil during the construction of your project, you will need a Construction/Land Disturbance Run-off general permit from the Office of Water Quality Storm Water Program.