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Isolated Wetlands Program

IDEM has been carefully reviewing Senate Enrolled Act 389 to ensure all changes will be clearly and accurately implemented following the effective date.  Section 1 of the law is retroactively effective to January 1, 2021 while Sections 2-14 are effective on July 1, 2021.  Most permits issued since January 1, 2021 will be unaffected by the new law, and previously approved mitigation plans remain in effect. IDEM will provide guidance prior to the implementation of the new law.  Should you have questions about these changes, please contact IDEM’s wetland section.

Our nation's wetlands and waterways provide beautiful scenery, drinking water/groundwater recharge, and recreation value, along with many other benefits. They also provide raw materials for industry and medicine, hydroelectric power, a receptacle for wastewater, and a highway for commerce. While these uses provide great benefits to citizens, they can also alter and pollute our nation's waters and waterways. Federal permits or licenses are required to conduct many of these types of operations, including building and operating hydroelectric dams, discharging wastewater, altering flow paths, and placing fill materials into wetlands and waterways.

When a project is planned in Indiana that will impact a wetland, stream, river, lake, or other Water of the U.S., the Indiana Department of Environmental Management (IDEM) must issue a Section 401 Water Quality Certification (401 WQC). A Section 401 WQC is a required component of a federal permit and must be issued before a federal permit or license can be granted. The bulk of federal permits requiring Section 401 Water Quality Certification from IDEM are Section 404 Dredge and Fill Permits, which are issued by the U.S. Army Corps of Engineers (USACE). However, applicants for a license to operate a hydroelectric dam from the Federal Energy Regulatory Commission (FERC) must also receive Section 401 Water Quality Certification from IDEM. Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged and fill material into Waters of the United States. The basic premise of the USACE's Section 404 Regulatory program is that dredged or fill material cannot be discharged into water if the nation's waters would be significantly degraded or if a feasible alternative exists that is less damaging to the aquatic environment. Dredge and fill activities are controlled by a permit process administered by the U.S. Army Corps of Engineers and overseen by the Environmental Protection Agency (EPA).

This means that any person or company planning to discharge fill materials to Indiana wetlands or other water bodies such as streams, rivers, and lakes by filling, excavating, open-trench cutting, or mechanical clearing, must receive Section 401 Water Quality Certification authorization from IDEM and must also apply for, and receive, a federal Section 404 Dredge and Fill Permit from the USACE.

If the USACE determines that wetlands or other water features are present, but determines that they are not Waters of the U.S., then they are considered to be Waters of the State. Isolated wetlands (those wetlands not regulated under the federal Clean Water Act) are Waters of the State and are regulated under Indiana's State Isolated Wetlands law (Indiana Code 13-18-22). Impacts to isolated wetlands require State Isolated Wetland Permits from IDEM. Again, because the federal government's jurisdiction is different than the state's, IDEM must be contacted to determine which, if any, state authorization(s) is/are needed before an applicant may legally discharge pollutants (including fill materials) to wetland, streams, rivers, lakes, and other Waters.

IDEM works closely with the U.S. Army Corps of Engineers and coordinates the permit application processes as much as possible. IDEM recommends that any potential applicant first contact the Corps to begin the application process and determine if the proposed project will impact wetlands or other regulated waters, and to determine whether or not a federal permit is required. If a federal permit is not required, IDEM can determine if a State Isolated Wetland Permit is required.

Although both IDEM and the U.S. Army Corps of Engineers regulate impacts to wetlands and other Waters of the U.S., they have different authority and jurisdictions. This is why both IDEM and the Corps need to be contacted before any discharge to or activity in a wetland, stream, river, lake, or other Water occurs.

If the USACE determines that a proposed project will require a Corps' Section 404 Dredge and Fill Permit, then the applicant must also apply for, and obtain, a Section 401 Water Quality Certification from IDEM. IDEM will review the proposed activities to determine if they will comply with Indiana law, including state water quality standards.

Applicants must demonstrate to IDEM how they are avoiding impacts to wetlands and Waters of the U.S/Waters of the State. If an applicant is unable to completely avoid impacts, they must demonstrate how their proposed project and unavoidable impacts to wetlands and other regulated waterbodies have been minimized. Applicants must provide compensatory mitigation for any remaining adverse impacts to wetlands and other regulated Waters.

IDEM will deny Section 401 Water Quality Certification and State Isolated Wetland permit applications if an applicant cannot show that their discharge(s) and impact(s) will comply with state law and may cause violations of water quality standards. As an example, IDEM may deny Section 401 WQC or an Isolated Wetland Permit 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 (NRPD-Water-011, available on the IDEM Nonrules 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 and/or Isolated Wetland Permits (or other authorization) from IDEM.

IDEM encourages you to read more about our Section 401 Water Quality Certification Program and the Indiana State Isolated Wetlands Permitting Program.

Isolated Wetlands Permitting Program