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Indiana Department of Environmental Management

IDEM > Nonrule Policies > Water-006-NRD Water-006-NRD

Title: Environmental Notice for Mitigation required in Clean Water Act Section 401 State Water Quality Certifications
Identification Number: Water-006-NRD
Date Originally Effective: October 14, 2005
Dates Revised: None
Other Policies Repealed or Amended: None

Brief Description of Subject Matter:
To consistently implement the Clean Water Act Section 401 State Water Quality Certification program and the State Regulated Wetland Permitting program, IDEM will not require a deed restriction as a condition for a Clean Water Act Section 401 State Water Quality Certification.

Citations Affected: IC 13-18-22; 327 IAC 17

This nonrule policy document is intended solely as guidance and does not have the effect of law or represent formal Indiana Department of Environmental Management (IDEM) decisions or final actions. This nonrule policy document shall be used in conjunction with applicable laws. It does not replace applicable laws, and if it conflicts with these laws, the laws shall control. This nonrule policy document may be put into effect by IDEM 30 days after presentation to the appropriate board. Pursuant to IC 13-14-11.5, this policy will be available for public inspection for at least 45 days prior to presentation to the appropriate board. If the nonrule policy is presented to more than one board, it will be effective 30 days after presentation to the last. IDEM will submit the policy to the Indiana Register for publication. Revisions to the policy will follow the same procedure of presentation to the board and publication.

General Background

Certain proposed impacts to Indiana's wetlands are required to be authorized under either a federal 404 permit, issued by the United States Army Corps of Engineers (USACOE) following a 401 certification by IDEM, or a state regulated wetland permit, issued by IDEM. IDEM's authority to issue 401 certifications is given directly through the Clean Water Act (CWA). Therefore, there is no need for a delegation agreement between USACOE and IDEM. Thus, grossly simplified, the 401 process is:

  1. IDEM receives a complete application to discharge fill into a water of the US.
  2. IDEM writes a certification with appropriate conditions to assure compliance with the appropriate state water quality standards (WQS).
  3. USACOE issues a 404 permit, which includes the 401 conditions and any other conditions the USACOE deems appropriate.
  4. The USACOE enforces all conditions of the 404 permit, including those from the 401. With USACOE enforcement, IDEM is not precluded from enforcing the conditions of the 401 certification.

Since the USACOE enforces the conditions of the 404 permit, IDEM's own enforcement abilities are of limited concern for federally jurisdictional wetlands. This is not the case with State Regulated Wetlands. State Regulated Wetlands are, by definition, not under federal jurisdiction. IDEM has sole enforcement responsibility. The USACOE could require a deed restriction condition on the 404 permit regardless of whether IDEM required one through the 401 certification. Inclusion of a deed restriction condition on 404 permits is a POLICY (not a requirement) of the USACOE. Following is the applicable excerpt from the USACOE's mitigation guidance:

g. Site Protection: Compensatory mitigation plans should include a written description of the legal means for protecting mitigation area(s), and permits will be conditioned accordingly. The wetlands, uplands, riparian areas, or other aquatic resources in a mitigation project should be permanently protected, in most cases, with appropriate real estate instruments, e.g., conservation easements, deed restrictions, transfer of title to Federal or state resource agencies or non-profit conservation organizations. Generally, conservation easements held by tribal, state or local governments, other Federal agencies, or non-governmental groups, such as land trusts, are preferable to deed restrictions. Homeowners' associations should be used for these purposes only in exceptional circumstances, such as when the association is responsible for community open spaces with restrictive covenants. Districts may require third party monitoring if necessary to ensure permanent protection.

In no case will the real estate instrument require a Corps official's signature. Also, Districts will not approve a requirement that results in the Federal government holding deed restrictions on properties, or that contains real estate provisions committing Corps Districts to any interest in the property in question, unless proper statutory authority is identified that authorizes such an arrangement.

A February 22, 2005 memorandum from IDEM Office of Legal Counsel staff to IDEM Office of Water Quality program staff concludes that IDEM has no legal authority to enforce deed restrictions for wetland mitigation. Following is the main body of the memo in its entirety:

Indiana case law has established that deed restrictions and other types of restrictive covenants are essentially contract rights; express contracts between a grantor and grantee which restrict the grantee's use of land. Parties who do not hold an interest that runs with the land do not have standing to enforce a covenant that runs with the land. The Court of Appeals of Indiana has made this finding numerous times, e.g., Holliday v. Crooked Creek Villages, 759 N.E. 2d 1088 (Ind. App. 2001), Hrisomalos v. Smith, 600 N.E. 2d 1363 (Ind. App. 1992).

However, there is statutory authority under IC 13-14-2-6(5) for IDEM to enforce restrictive covenants created in connection to remediations, cleanups, closures or corrective actions. Restrictive covenants intended to protect wetland mitigation sites do not meet the criteria for enforceability under IC 13-14-2-6(5). That the Indiana legislature recognized the need to provide specific statutory authority for the state to enforce those specific covenants reinforces the position that absent the granting of such authority, IDEM may not enforce covenants concerning wetland mitigation sites."

Policy Resolution

Considering the USACOE will, likely, require a deed restriction condition on the 404 permit regardless of whether IDEM required one through the 401 certification; and

Considering the Indiana legislature did not recognize the need to provide specific statutory authority for the state to enforce covenants concerning wetland mitigation sites, IDEM may not enforce covenants concerning wetland mitigation sites; and

Noting that IDEM believes it is important to consistently implement the Clean Water Act Section 401 State Water Quality Certification program and the State Regulated Wetland Permitting program; and

Understanding that the Water Pollution Control Board, on March 9,2005 adopted rules (327 IAC 17) concerning state regulated wetlands and wetland activity permits which do not require a deed restriction as a condition for a wetland activity permit.

IDEM will not require a deed restriction as a condition for a Clean Water Act Section 401 State Water Quality Certification. IDEM will require, as a condition for a Clean Water Act Section 401 State Water Quality Certification, that an applicant establishing a mitigation wetland must file a signed and recorded environmental notice, which describes the compensatory mitigation contained in the mitigation plan, with the department within sixty (60) days of the applicant's release from monitoring requirements.

Explanation

IDEM believes it is important that rules be clear and enforceable. Additionally, implementation of rules should be predictable across similar programs. Specifically, as noted above, IDEM believes it is important to consistently implement the Clean Water Act Section 401 State Water Quality Certification program and the State Regulated Wetland Permitting program.

IDEM does not believe it is appropriate to require any conditions that are not enforceable. As IDEM does not have standing to enforce deed restrictions for wetland mitigation, IDEM believes it is not appropriate to require deed restrictions for wetland mitigation required for either the Clean Water Act Section 401 State Water Quality Certification program, or the State Regulated Wetland Permitting program.