Indiana Stream and Wetland Mitigation Program
PROGRAM DEVELOPMENT STATUS UPDATE
In June 2014, the DNR submitted a Prospectus to the U.S. Army Corps of Engineers (Corps) and the Interagency Review Team (IRT) to serve as the Sponsor of an in-lieu fee program for stream and wetland mitigation. The Corps had a public notice period soliciting comments on the Prospectus from July 16, 2014, through Aug. 18, 2014. During the public notice period, the DNR held a series of public information sessions around the state on Aug. 5-7. An overview presentation of the proposed program was given, followed by a question-and-answer session. Attendees were encouraged to provide comments to the Corps before the comment period closed.
DNR then submitted a Draft Instrument for the program to the Corps and IRT in August 2015. The Corps responded to the DNR’s Draft Instrument with comments and questions from the entire IRT.
On April 28, 2017, DNR submitted a Final Instrument to the Corps that incorporated its requested changes and addressed comments from the Corps and IRT to continue to move forward with the final stages of developing the proposed statewide in-lieu fee (ILF) mitigation program, the Indiana’s Stream & Wetland Mitigation Program (IN SWMP). DNR has been working closely with the Indiana Department of Transportation and the Indiana Department of Environmental Management (IDEM) on the development of this program for Indiana, and is optimistic a program will be approved by the end of 2017.
*Upon approval of Final Instrument the IN SWMP web site will be updated.
PURPOSE OF THE PROGRAM
The DNR’s ILF program, when approved and established, will be able to sell stream and wetland mitigation credits that can be used for compensatory mitigation for unavoidable impacts to waters of the United States and isolated wetlands in the State of Indiana. Permits are required by the Corps in accordance with Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) for work in or affecting traditionally navigable “waters of the United States” and in accordance with Section 404 of the Clean Water Act (CWA) for the discharge of dredged and/or fill material into “waters of the U.S.,” and by IDEM under Section 401 Water Quality Certification of the CWA and Indiana’s Isolated Wetlands law (Indiana Code 13-18-22).
Additionally, the Indiana Natural Resources Commission (NRC) adopted new rules allowing for an in-lieu fee 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 and must still be reviewed by the Attorney General’s Office and Governor’s Office. The DNR Division of Fish & Wildlife is also working on a non-rule policy document that will assist it and the regulated community on how the in-lieu fee option will be carried out.
Currently, these permits require an applicant to restore aquatic resources and habitat either (1) at or near the project site, or (2) using an approved mitigation bank. The DNR’s IN SWMP ILF program will add an additional mitigation option for permit applicants.
HOW WILL THE IN-LIEU FEE PROGRAM WORK?
An in-lieu fee program involves the restoration, establishment, enhancement and/or preservation of aquatic resources through funds paid to a government or non-profit natural resources management entity to satisfy compensatory mitigation requirements for permits. An in-lieu fee program sells “advance credits” to permit recipients 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.
Fees collected for these credit sales will be deposited in the appropriate accounts owned and managed by the Indiana Natural Resources Foundation, a not-for-profit organization that exists to promote, support, assist, sustain and encourage the charitable, educational and scientific programs, projects and policies of the DNR.
In-lieu fee programs are 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.
APPROVAL PROCESS FOR CREATING AN IN-LIEU FEE PROGRAM
Phase I: Draft Prospectus, a voluntary step in the process. - COMPLETED.
Phase II: Prospectus – COMPLETED. June 2014 submission; Corps Public Notice was July 16 – Aug. 18, 2014; DNR Public Meetings held across the state Aug. 5-7, 2014, during Corps public comment period.
- The Prospectus describes the overarching framework for how the program will be established, operated and managed, further broken into eight required elements.
- This phase in the approval process also includes a Corps-sponsored public comment period once the Prospectus has been determined as complete.
Phase III: Draft Instrument – COMPLETED.
- The Draft Instrument builds upon the elements of the Prospectus and calls for additional elements such as how many Advanced Credits the program will seek to sell along with how the Credit Fee will be calculated.
- The Draft Instrument also incorporates all the comments previously submitted under Phase II.
Phase IV: Final Instrument – SUBMITTED; UNDER REVIEW.
- The Final Instrument firms up any loose programmatic ends and, once completed, enables the program sponsor to begin selling Advanced Credits and operating the program.
*The Final Instrument, including the credit fee schedule, is subject to comments from the Corps and IRT members. The credit fees are not yet approved and not considered final until the Final Instrument is approved.
- IN SWMP Final Instrument - Not Yet Approved
- IN SWMP Compensation Planning Framework (CPF statewide portion) - Appendix B
- IN SWMP CPF - Calumet-Dunes Service Area – Appendix B.1
- IN SWMP CPF - St. Joseph River Service Area – Appendix B.2
- IN SWMP CPF - Maumee Service Area – Appendix B.3
- IN SWMP CPF - Kankakee Service Area – Appendix B.4
- IN SWMP CPF - Upper Wabash Service Area – Appendix B.5
- IN SWMP CPF - Middle Wabash Service Area – Appendix B.6
- IN SWMP CPF - Upper White Service Area – Appendix B.7
- IN SWMP CPF - Whitewater-East Fork White Service Area – Appendix B.8
- IN SWMP CPF - Lower White Service Area – Appendix B.9
- IN SWMP CPF - Upper Ohio Service Area – Appendix B.10
- IN SWMP CPF - Ohio-Wabash Lowlands Service Area – Appendix B.11
- IN SWMP CPF - Literature Cited
**The credit prices are subject to change as the DNR deems necessary in order to provide complete cost accounting for fulfilling advance credits sold for mitigation. The State of Indiana should not be subsidizing mitigation for permit recipients with taxpayer dollars.
INFO FOR ENVIRONMENTAL AND RESTORATION CONSULTING FIRMS
Firms interested in providing services to the DNR’s IN SWMP will be required to be registered with the Secretary of State’s office as a vendor as well already being qualified by the Indiana Department of Administration’s Division of Public Works as either a designer/consultant or as a construction contractor. IDOA DPW has qualification web pages with additional information and the required applications.
INFORMATION FOR LANDOWNERS
Landowners who might be interested in protecting their land (via conservation easement) or selling some of their land for a potential wetland and/or stream restoration mitigation project under IN SWMP, should email INSWMP-Inquiry@dnr.IN.gov.
IN SWMP STAFF CONTACT INFORMATION
ANSWERS TO FREQUENTLY ASKED QUESTIONS
Q: What is in-lieu fee mitigation?
A: ILF mitigation involves the restoration, creation, enhancement, or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation for federal, state and local permits.
ILF credits can be used for compensatory mitigation only after a permitting/regulatory agency determines that unavoidable wetland impacts will be adequately offset by the ILF credits. If the agencies determine that the ILF credits compensate for the aquatic resource loss/impacts, the permit recipient then purchases credits (i.e., pays a fee) from the sponsor.
The funds from the credit purchase are used by the sponsor to carry out a mitigation project instead of (i.e., in lieu of) the permittee completing their own mitigation project.
Q: How is in-lieu fee different from other types of mitigation?
A: In-lieu fee programs sell advance mitigation credits to permit recipients whose obligation to provide compensatory mitigation is then transferred to the sponsor of an approved in-lieu fee program. The sponsor of the ILF program then becomes responsible for the success of mitigation projects. The ILF projects are usually constructed after impacts have occurred and fees have been collected.
Other approaches to provide compensation for wetland impacts that result from development are listed below:
- “Permittee-responsible” mitigation: Generally, the wetlands are built after the permit is issued and the adverse impact occurs. Mitigation can occur on or off site. In these situations the permit recipient retains responsibility for the success of the mitigation.
- Wetland mitigation banking: Wetland areas are established before unavoidable permitted losses occur. Bank credits can be sold to permit recipients to meet permit requirements. Like an in-lieu fee program, the responsibility for the success of the mitigation transfers to the bank sponsor when credits are purchased.
Q: What are the benefits of an in-lieu fee program?
A: ILF programs provide many benefits, such as:
- Project sites can be selected based on local watershed needs and local watershed plans.
- Flexibility to combine mitigation needs from small project impacts into larger, more sustainable wetland complexes.
- Ease of use — the permit recipient pays a fee into a fund that transfers their mitigation responsibilities to the ILF sponsor.
- Provides the state a better opportunity at mitigation success by having an ILF sponsor, experienced in completing restoration projects, carry out the mitigation plan.
- Provides permanent protection — the regulatory agencies require mechanisms for long-term protection, management, and maintenance of the project sites.