Understanding State Regulated Wetland Exemptions

Under Indiana’s State Regulated Wetlands Law (commonly referred to as Indiana’s Isolated Wetlands Law), certain activities are exempt from permitting, and certain wetlands are considered to be “exempt isolated wetlands.”

What activities are exempt from permitting?

Certain activities in isolated wetlands, as specified in 327 IAC 17-1-7, are exempt from permitting. The following are exempt activities in state regulated wetlands:

• The discharge of dirt, sand, rock, stone, concrete, or other inert fill materials any of the following in a de minimis amount.
• A wetland activity at a surface coal mine for which the Indiana Department of Natural Resources has approved a plan to minimize, to the extent practical using best technology currently available, disturbances and adverse effects on fish and wildlife; otherwise effectuate environmental values; and enhance those values where practicable.
• Any activity listed under Section 404(f) of the Clean Water Act, including the following:
  1. Normal farming, silviculture, and ranching activities (such as plowing, seeding cultivating, minor drainage, harvesting for the production of food, fiber, and harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices.
  2. Maintenance, including emergency reconstruction of recently damaged parts of currently serviceable structures (such as dikes, dams, levees, groins, riprap, breakwaters, causeways and bridge abutments or approaches, transportation structures, and construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance of drainage ditches).
  3. Construction of temporary sedimentation basins on a construction site that does not include placement of fill material into the navigable waters.
  4. Construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where the roads are constructed and maintained, in accordance with best management practices that assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, the reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized.

What types of exemptions are there for Isolated Wetland Impacts?

IDEM does not have authority to regulate activities in “exempt isolated wetlands.” The term “exempt isolated wetland” includes the following situations:

• An isolated wetland that is voluntarily created is exempt from regulation unless that wetland was constructed as compensatory mitigation in accordance with a permit issued under Section 404 of the Clean Water Act or IC 13-18-22.
• An isolated wetland that is voluntarily created is exempt from regulation unless that wetland was reclassified as a State Regulated Wetland under IC 13-18-22-6(c), which states that “A wetland that is created or restored as a Water of the United States may be used, as an alternative to the creation or restoration of an isolated wetland, as compensatory mitigation. The replacement class of a wetland that is a Water of the United States shall be determined by applying the characteristics of a Class I, Class II, or Class III wetland, as appropriate, to the replacement wetland as if it were an isolated wetland.”
• An isolated wetland that is voluntarily created is exempt from regulation unless the owner of the wetland declares, by a written instrument, that the wetland is to be considered in all respects a State Regulated Wetland. The written instrument must be recorded in the office of the recorder of the county or counties in which the wetland is located and also filed with IDEM.
• A Class one wetland
• Class two wetland with an area, as delineated of not more than three-eighths (3/8) acre (multiple wetlands meeting this size exemption may cumulatively be exempt at 60%.  See exemptions calculations below).
• Class two wetland with an area, as delineated of not more than three-fourths (3/4) acre if located within the boundaries of a municipality.
• An exempt isolated wetland is an isolated wetland that exists as an incidental feature in or on any of the following:
  1. A residential lawn.
  2. A lawn or landscaped area of a commercial or governmental complex.
  3. Agricultural land.
  4. A roadside ditch.
  5. An irrigation ditch.
  6. A manmade drainage control structure.

• An exempt isolated wetland is an isolated wetland that is a fringe wetland associated with a private pond.
• An exempt isolated wetland is an isolated wetland that is, or is associated with, a manmade body of surface water of any size created by excavating, diking, or excavating and diking dry land to collect and retain water for or incidental to agricultural, commercial, industrial, or aesthetic purposes.
• An exempt isolated wetland is an isolated wetland that is located on land:
  1. subject to regulation under the United States Department of Agriculture (USDA) wetland conservation rules, also known as Swampbuster (16 U.S.C. 3801-3862), because of voluntary enrollment in a federal farm program; and
  2. used for agricultural or associated purposes allowed under the rules referred to in this clause.

Class II Isolated Wetland Exemptions

The State Isolated Wetlands Law states that an exempt isolated wetland is an isolated wetland that is a Class II wetland with an area, as delineated, of three-eighths (3/8) acre or less.

Alternately, the total acreage of exempt Class II wetland acreage is limited to the larger of the following:

Option 1

Take the largest Class II wetland on the tract that is less than or equal to 3/8 acre in size (as described above) and declare that wetland to be exempt.

Option 2

Step 1: If you have several Class II wetlands on a tract, add up the acreages of each Class II wetland that is less than or equal to 3/8 acre in size.

Step 2: Take that acreage and multiply it by 0.60. You now have an acreage that is 60% of the cumulative acreage of your Class II wetlands on the site that are individually less than or equal to 3/8 acre in size. Sixty percent (60%) of the cumulative acreage of all individual isolated wetlands on the tract that would qualify for the individual Class II acreage exemption described in clause can be applied toward exemptions.

Step 3: Determine which wetlands’ acreage, when added up, get as close to that 60% cumulative acreage as possible without exceeding it.

An isolated wetland that is isolated due to its size  does not include an isolated wetland on a tract that contains more than one (1) of the same Cass of wetland until the owner of the tract notifies IDEM that the owner has selected the isolated wetland to be an exempt isolated wetland, consistent with the applicable limitations as described above.