Second Regular Session of the 123rd General Assembly (2024)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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between statutes enacted by the 2023 Regular Session of the General Assembly.
HOUSE ENROLLED ACT No. 1383
AN ACT to amend the Indiana Code concerning environmental law.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 13-11-2-25.8, AS AMENDED BY P.L.160-2021,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 25.8. (a) For purposes of IC 13-18:
(1) "Class I wetland" means an isolated wetland described by one
(1) or both of the following:
(A) At least fifty percent (50%) of the wetland has been
disturbed or affected by human activity or development by one
(1) or more of the following:
(i) Removal or replacement of the natural vegetation.
(ii) Modification of the natural hydrology.
(B) The wetland supports only minimal wildlife or aquatic
habitat or hydrologic function because the wetland does not
provide critical habitat for threatened or endangered species
listed in accordance with the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.) and the wetland is characterized by at
least one (1) of the following:
(i) The wetland is typified by low species diversity.
(ii) The wetland contains greater than fifty percent (50%)
areal coverage of non-native invasive species of vegetation.
(iii) The wetland does not support significant wildlife or
aquatic habitat.
(iv) The wetland does not possess significant hydrologic
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function;
(2) "Class II wetland" means one (1) of the following:
(A) An isolated wetland that supports moderate habitat or
hydrological functions, including an isolated wetland that is
dominated by native species but is generally without:
(A) (i) the presence of; or
(B) (ii) habitat for;
rare, threatened, or endangered species. and
(B) A type of wetland listed in subdivision (3)(B)(i) through
(3)(B)(vi) that:
(i) is located in a setting more than minimally disturbed
by human activity or development; or
(ii) supports less than minimal wildlife or aquatic habitat
or hydrologic function.
(3) "Class III wetland" means an isolated wetland:
(A) that is located in a setting undisturbed or minimally
disturbed by human activity or development and that supports
more than minimal wildlife or aquatic habitat or hydrologic
function; at least one (1) of the following rare and
ecologically important types:
(i) Acid bog.
(ii) Acid seep.
(iii) Circumneutral bog.
(iv) Circumneutral seep.
(v) Cypress swamp.
(vi) Dune and swale.
(vii) Fen.
(viii) Forested fen.
(ix) Marl beach.
(x) Muck flat.
(xi) Panne.
(xii) Sand flat.
(xiii) Sinkhole pond.
(xiv) Sinkhole swamp; or
(B) that is located in a setting undisturbed or minimally
disturbed by human activity or development and that
supports more than minimal wildlife or aquatic habitat or
hydrologic function and of that is at least one (1) of the
following rare and ecologically important types:
(i) Acid bog.
(ii) Acid seep.
(iii) Circumneutral bog.
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(iv) Circumneutral seep.
(v) Cypress swamp.
(vi) Dune and swale.
(vii) Fen.
(viii) Forested fen.
(ix) (i) Forested swamp.
(x) Marl beach.
(xi) Muck flat.
(xii) Panne.
(xiii) Sand flat.
(xiv) (ii) Sedge meadow.
(xv) (iii) Shrub swamp.
(xvi) Sinkhole pond.
(xvii) Sinkhole swamp.
(xviii) (iv) Wet floodplain forest.
(xix) (v) Wet prairie.
(xx) (vi) Wet sand prairie.
(b) For purposes of this section, a wetland or setting is not
considered disturbed or affected as a result of an action taken after
January 1, 2004, for which a permit is required under IC 13-18-22 but
has not been obtained.
(c) A wetland shall be classified by the function of the wetland
prior to an impact if the impact:
(1) lowered hydrology or habitat function in the wetland; and
(2) would result in a lower classification but for this
subsection.
SECTION 2. IC 13-11-2-48.5, AS ADDED BY P.L.160-2021,
SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 48.5. (a) "Cropland", for purposes of
IC 13-18-22-1(d), IC 13-18-22-1(c), means farmland:
(1) that is cultivated for agricultural purposes; and
(2) from which crops are harvested.
(b) The term includes:
(1) orchards;
(2) farmland used to produce row crops, close-grown crops, or
cultivated hay; and
(3) farmland intentionally kept out of production during a regular
growing season (summer fallow).
(c) The term does not include pasture land pastureland unless the
pasture land pastureland is in active rotation with cultivated crops for
purposes of soil maintenance or improvement.
SECTION 3. IC 13-11-2-74.5, AS AMENDED BY P.L.160-2021,
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SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 74.5. (a) "Exempt isolated wetland", for purposes
of IC 13-18 and environmental management laws, means an isolated
wetland that:
(1) is a voluntarily created wetland unless:
(A) the wetland is approved by the department for
compensatory mitigation purposes in accordance with a permit
issued under Section 404 of the Clean Water Act or
IC 13-18-22;
(B) the wetland is reclassified as a state regulated wetland
under IC 13-18-22-6(e); IC 13-18-22-6(g); or
(C) the owner of the wetland declares, by a written instrument:
(i) recorded in the office of the recorder of the county or
counties in which the wetland is located; and
(ii) filed with the department;
that the wetland is to be considered in all respects to be a state
regulated wetland;
(2) exists as an incidental feature in or on:
(A) a residential lawn;
(B) a lawn or landscaped area of a commercial or
governmental complex;
(C) agricultural land;
(D) a roadside ditch;
(E) an irrigation ditch; or
(F) a manmade drainage control structure;
(3) is a fringe wetland associated with a private pond;
(4) is, or is associated with, a manmade body of surface water of
any size created by:
(A) excavating;
(B) diking; or
(C) excavating and diking;
dry land to collect and retain water for or incidental to
agricultural, commercial, industrial, or aesthetic purposes;
(5) is a Class I wetland;
(6) subject to subsection (c), is a Class II wetland with that:
(A) is not located within the boundaries of a municipality,
and has an area, as delineated, of not more than three-eighths
(3/8) acre; or
(B) is located within the boundaries of a municipality, and
has an area, as delineated, of not more than three-fourths
(3/4) acre;
(7) is located on land:
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(A) subject to regulation under United States Department of
Agriculture wetland conservation programs, including
Swampbuster and the Wetlands Reserve Program, because of
voluntary enrollment in a federal farm program; and
(B) used for agricultural or other purposes allowed under the
programs referred to in clause (A); or
(8) is constructed for reduction or control of pollution.
(b) For purposes of subsection (a)(2), an isolated wetland exists as
an incidental feature:
(1) if:
(A) the owner or operator of the property or facility described
in subsection (a)(2) does not intend the isolated wetland to be
a wetland;
(B) the isolated wetland is not essential to the function or use
of the property or facility; and
(C) the isolated wetland arises spontaneously as a result of
damp soil conditions incidental to the function or use of the
property or facility; and
(2) if the isolated wetland satisfies any other factors or criteria
established in rules that are:
(A) adopted by the board; and
(B) not inconsistent with the factors and criteria described in
subdivision (1).
(c) The total acreage of Class II wetlands on a tract to which the
exemption described in subsection (a)(6) may apply is limited to the
larger of:
(1) the acreage of the largest individual isolated wetland on the
tract that qualifies for the exemption described in subsection
(a)(6); and
(2) sixty percent (60%) of the cumulative acreage of all individual
isolated wetlands on the tract that would qualify for the exemption
described in subsection (a)(6) but for the limitation of this
subsection.
(d) An isolated wetland described in subsection (a)(5) or (a)(6) does
not include an isolated wetland on a tract that contains more than one
(1) of the same class of wetland until the owner of the tract notifies the
department that the owner has selected the isolated wetland to be an
exempt isolated wetland under subsection (a)(5) or (a)(6).
SECTION 4. IC 13-18-22-1, AS AMENDED BY P.L.247-2023,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 1. (a) Except as provided in subsection (b), a
person proposing a wetland activity in a state regulated wetland must
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obtain a permit under this chapter to authorize the wetland activity.
(b) A permit is not required for the following wetland activities:
(1) The discharge of dirt, sand, rock, stone, concrete, or other
inert fill materials in a de minimis amount.
(2) A wetland activity at a surface coal mine for which the
department of natural resources has approved a plan to:
(A) minimize, to the extent practical using best technology
currently available, disturbances and adverse effects on fish
and wildlife;
(B) otherwise effectuate environmental values; and
(C) enhance those values where practicable.
(3) Any activity listed under Section 404(f) of the Clean Water
Act, including:
(A) normal farming, silviculture, and ranching activities, such
as plowing, seeding, cultivating, minor drainage, harvesting
for the production of food, fiber, and forest products, or upland
soil and water conservation practices;
(B) 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, and
transportation structures;
(C) construction or maintenance of farm or stock ponds or
irrigation ditches, or the maintenance of drainage ditches;
(D) construction of temporary sedimentation basins on a
construction site that does not include placement of fill
material into the navigable waters; and
(E) 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, to assure that:
(i) flow and circulation patterns and chemical and biological
characteristics of the navigable waters are not impaired;
(ii) the reach of the navigable waters is not reduced; and
(iii) any adverse effect on the aquatic environment will be
otherwise minimized.
(4) The maintenance or reconstruction (as defined in
IC 36-9-27-2) of a regulated drain in accordance with
IC 36-9-27-29(2) as long as the work takes place within the
current easement, and the reconstruction does not substantially
change the characteristics of the drain to perform the function for
which it was designed and constructed.
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(5) Wetland activities in an exempt isolated wetland, as defined
in IC 13-11-2-74.5.
(6) Dredge and fill activities in an ephemeral stream, as defined
in IC 13-11-2-72.4.
(7) Dredge and fill activities in a Class II wetland that:
(A) is located within the boundaries of a municipality; and
(B) has an area, as delineated, of not more than three-fourths
(3/4) acre.
(8) (7) The activities of a forestry operation that are:
(A) conducted in compliance with the Indiana Logging and
Forestry Best Management Practices Field Guide published by
the department of natural resources; and
(B) confined to a waterway that has a watershed not greater
than ten (10) square miles.
A state permit will be required if there are permanent negative
impacts to isolated wetlands outside of a waterway or the
activities conducted fail to comply with the Indiana Logging and
Forestry Best Management Practices Field Guide.
(c) If a conflict arises between:
(1) the provision in subsection (b)(7) under which dredge and fill
activities in a Class II wetland with an area, as delineated, of not
more than three-fourths (3/4) acre do not require a permit; and
(2) the provision in section 3(a) of this chapter under which a
wetland activity in a Class II wetland with an area, as delineated,
of more than three-eighths (3/8) acre require an individual permit;
the exemption in subsection (b)(7) controls.
(d) (c) The development conversion of cropland, as defined in
IC 13-11-2-48.5, to housing does not require a permit under this
chapter if the cropland has been used for agricultural purposes:
(1) in the five (5) years immediately preceding the development;
or
(2) in the ten (10) years immediately preceding the development,
if the United States Army Corps of Engineers has issued a
jurisdictional determination confirming that the cropland does not
contain wetlands subject to federal jurisdiction under Section 404
of the Clean Water Act.
After receiving a jurisdictional determination described in subdivision
(2) from the United States Army Corps of Engineers, the department
shall notify the person proposing the wetland activity that the
development of the cropland used for agricultural purposes in the
immediately preceding ten (10) years is exempt from the permit
requirement of subsection (a) under subdivision (2).
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SECTION 5. IC 13-18-22-2, AS AMENDED BY P.L.2-2005,
SECTION 55, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 2. (a) The board may adopt rules under IC 4-22-2
and IC 13-14 not later than February 1, 2005, to implement the part of
the definition of Class I wetland under IC 13-11-2-25.8(a)(1)(B).
(b) Before the adoption of rules by the board under subsection (a),
the department shall determine the class of a wetland in a manner
consistent with the definitions of Class I, II, and III wetlands in
IC 13-11-2-25.8.
(c) The classification of an isolated wetland that is based on the
level of disturbance of the wetland by human activity or development
may be improved to a higher numeric class if an action is taken to
restore the isolated wetland, in full or in part, to the conditions that
existed on the isolated wetland before the disturbance occurred.
SECTION 6. IC 13-18-22-3, AS AMENDED BY P.L.160-2021,
SECTION 8, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 3. (a) The following shall be authorized by an
individual permit:
(1) Wetland activity in a nonexempt Class II wetland with an
area, as delineated, of more than three-eighths (3/8) acre. This
subdivision does not apply to the maintenance of a field tile
within a Class II wetland under section 4(a)(1). that does not
qualify for a general permit under section 4 of this chapter.
(2) Wetland activity in a Class III wetland.
(b) The board shall may adopt rules under IC 4-22-2 and IC 13-14
to govern the issuance of individual permits by the department under
subsection (a).
SECTION 7. IC 13-18-22-4, AS AMENDED BY P.L.160-2021,
SECTION 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 4. (a) The following shall be authorized by a
general permit:
(1) The maintenance of a field tile within a Class II wetland.
However, the maintenance described in this subdivision may be
authorized only if the field tile:
(A) is necessary to restore drainage of land adjacent to the
wetland; and
(B) does not have the effect of draining the wetland.
(2) The maintenance of a field tile within a Class III wetland.
However, the maintenance described in this subdivision may be
authorized only if:
(A) the maintenance of the field tile:
(i) is necessary to restore drainage of land adjacent to the
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wetland; and
(ii) does not have the effect of draining the wetland; and
(B) the applicant obtains a site-specific approval for the
maintenance of the field tile under section 12 of this chapter.
Dredge and fill activities with minimal impact that are at
or below impact thresholds, including the activities
analogous to those allowed under the nationwide permit
program (as published in 67 Fed. Reg. 2077-2089 (2002)).
(b) The maintenance of a field tile in a Class I wetland does not
require a permit.
(c) The board shall may adopt rules under IC 4-22-2 and IC 13-14
to establish and implement the general permits described in subsection
(a).
(d) The department may not authorize a wetlands activity
described in subsection (a) unless the applicant:
(1) identifies the water to be affected by the activity; and
(2) provides a compensatory mitigation plan as set forth in
section 6 of this chapter.
SECTION 8. IC 13-18-22-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2024]: Sec. 5. (a) The rules adopted
under section 3 of An applicant for a permit issued under this
chapter:
(1) must require that the applicant demonstrate, as a prerequisite
to the issuance of the permit, that wetland activity:
(A) is:
(i) without reasonable alternative; and
(ii) reasonably necessary or appropriate;
to achieve a legitimate use proposed by the applicant on the
property on which the wetland is located; and
(B) for a Class III wetland, is without practical alternative and
will be accompanied by taking steps that are practicable and
appropriate to minimize potential adverse impacts of the
discharge on the aquatic ecosystem of the wetland; and
(2) except as provided in subsection (c), (b), must establish that
compensatory mitigation will be provided as set forth in section
6 of this chapter to reasonably offset the loss of wetlands allowed
by the permits. and
(3) The department or the board may prescribe additional conditions
on applicants that are reasonable and necessary to carry out the
purposes of this chapter.
(b) The rules adopted under section 4 of this chapter must require,
as a prerequisite to the applicability of the general permit by rule to a
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specific wetland activity, that the person proposing the discharge
submit to the department a notice of intent to be covered by the general
permit by rule that:
(1) identifies the wetlands to be affected by the wetland activity;
and
(2) except as provided in subsection (c), provides a compensatory
mitigation plan as set forth in section 6 of this chapter to
reasonably offset the loss of wetlands allowed by the general
permit.
(c) (b) Under subsections (a) and (b), the rules adopted under
sections 3 and 4 of this chapter may provide for The commissioner
may approve exceptions to compensatory mitigation in specific,
limited circumstances.
(d) (c) For purposes of subsection (a)(1)(A):
(1) a resolution of the executive of the county or municipality in
which the wetland is located; or
(2) a permit or other approval from a local government entity
having authority over the proposed use of the property on which
the wetland is located;
that includes a specific finding that the wetland activity is as described
in subsection (a)(1)(A) is considered conclusive evidence of that fact.
SECTION 9. IC 13-18-22-6, AS AMENDED BY P.L.160-2021,
SECTION 10, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 6. (a) Except as otherwise specified in subsections
(b), and (c), (e), (f), and (h), compensatory mitigation shall be provided
in accordance with the following table:
Wetland Replacement On-site and Off-site
Class Class In-lieu Fee Ratio
Ratio
Class II Class II or III 1.5 to 1 2 to 1
Nonforested Nonforested
2 to 1 2.5 to 1
Forested Forested
Class III Class III 2 to 1 2.5 to 1
Nonforested Nonforested
2.5 to 1 3 to 1
Forested Forested
(b) The compensatory mitigation ratio shall be lowered to one to one
(1:1) if the compensatory mitigation is completed before the initiation
of the wetland activity.
(c) 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
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isolated wetland, as compensatory mitigation for purposes of this
section. 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.
(d) The off-site location of compensatory mitigation must be:
(1) within:
(A) the same eight (8) digit U.S. Geological Service hydrologic
unit code; or
(B) the same county;
as the isolated wetlands subject to the authorized wetland activity;
or
(2) within a designated service area established in an in lieu fee
mitigation program approved by the United States Army Corps of
Engineers. department.
(e) For purposes of satisfying subsection (a), compensatory
mitigation may consist of:
(1) one (1) or a combination of the following:
(A) Creation or restoration of a wetland by the permittee.
(B) Bank credits.
(C) In lieu fee credits; or
(2) a combination of creation or restoration and preservation
methods such that:
(A) creation or restoration of a wetland by the permittee
accounts for at least a one to one (1:1) ratio of mitigation;
and
(B) preservation of a wetland by the permittee, under
subsection (h), accounts for any remaining mitigation
required under subsection (a).
(f) An exempt isolated wetlands: wetland:
(1) may be used to provide compensatory mitigation for wetlands
activities in state regulated wetlands. An exempt isolated wetland
that is used to provide compensatory mitigation becomes a state
regulated wetland. considered a created or restored wetland
for purposes of subsection (e)(1)(A) and (e)(2)(A); and
(2) if so considered, shall receive compensatory mitigation
credit as follows:
(A) A Class I wetland may be enhanced to a Class II
wetland by the permittee and used for mitigation credit for
impacts to Class II wetland at the following ratios:
(i) One to one (1:1) if the enhancement occurs prior to
impacts.
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(ii) Two to one (2:1) if the enhancement occurs after
permitting.
(B) If the mitigation wetland is the same or a higher
classification than the impacted wetland, the mitigation
wetland credit ratio is one to one (1:1).
(C) Except as provided in clause (A), if the mitigation
wetland is a lower classification than the impacted wetland,
then mitigation credit shall be given in accordance with the
following ratios:
MitigationImpact Mitigation
Wetland Wetland Credit Ratio
(Acres of Mitigation:
Acres of Credit)
Class I Class II 3 to 1
Class II Class III 4 to 1
(g) An exempt isolated wetland that is used to provide
compensatory mitigation under subsection (f) becomes state
regulated wetland.
(h) A nonexempt, Class II or Class III isolated wetland that is
not impacted and that is protected with a deed restriction or
conservation easement:
(1) may be preserved for purposes of subsection (e)(2)(B) so
long as the nonexempt, Class II or Class III isolated wetland
is the same or a higher classification as the impacted wetland;
and
(2) if the condition in subdivision (1) is met, shall receive
compensatory mitigation credit as follows:
Impact - Wetland Type or Class
MitigationClass II Class IIClass III Class III
Wetland NonforestedForestedNonforestedForested
Type
Class II 6 to 1 8 to 1 N/A N/A
On-site
Nonforested
Class II 5 to 1 6 to 1 N/A N/A
On-site
Forested
Class II 7 to 1 9 to 1 N/A N/A
Off-site
Nonforested
Class II 6 to 1 7 to 1 N/A N/A
Off-site
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Forested
Class III 4 to 1 5.5 to 17 to 1 9 to 1
On-site
Nonforested
Class III 3 to 1 4.5 to 16 to 1 7 to 1
On-site
Forested
Class III 4.5 to 1 6 to 1 8 to 1 10 to 1
Off-site
Nonforested
Class III 3.5 to 1 5 to 1 7 to 1 8 to 1
Off-site
Forested
(i) Unless otherwise specified, compensatory mitigation
provided under this section must be protected with a restrictive
covenant that is recorded with respect to the property on which the
mitigation wetland is located.
SECTION 10. IC 13-18-22-7, AS AMENDED BY P.L.160-2021,
SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 7. (a) The department shall:
(1) administer the permit programs established by this chapter;
and
(2) review and issue decisions on applications for permits to
undertake wetland activities in state regulated wetlands in
accordance with the rules issued by the board requirements
under this chapter.
(b) The department shall make available to the public a form for use
in applying for a permit under this chapter.
SECTION 11. IC 13-18-22-8, AS AMENDED BY P.L.160-2021,
SECTION 12, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 8. (a) Subject to subsection (f), The department
shall make a decision to issue or deny an individual permit under
section 3 of this chapter not later than ninety (90) days after receipt of
the completed application. If the department fails to make a decision on
a permit application by the deadline under this subsection or subsection
(d), a permit is considered to have been issued by the department in
accordance with the application.
(b) A general permit under section 4 of this chapter becomes
effective with respect to a proposed wetland activity that is within the
scope of the general permit on the thirty-first day after the department
receives a notice of intent from the person proposing the wetland
activity that the wetland activity be authorized under the general
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permit.
(c) The department must support a denial under subsection (a) by a
written statement of reasons.
(d) The department may notify the applicant that the completed
application referred to in subsection (a) is deficient. If the department
fails to give notice to the applicant under this subsection not later than
fifteen (15) days after the department's receipt of the completed
application, the application is considered not to have been deficient.
After receipt of a notice under this subsection, the applicant may
submit an amended application that corrects the deficiency. The
department shall make a decision to issue or deny an individual permit
under the amended application within a period that ends a number of
days after the date the department receives the amended application
equal to the remainder of:
(1) ninety (90) days; minus
(2) the number of days the department held the initial application
before giving a notice of deficiency under this subsection.
SECTION 12. IC 13-18-22-12, AS ADDED BY P.L.160-2021,
SECTION 13, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2024]: Sec. 12. (a) A person seeking to engage in maintenance
of a field tile within a Class III wetland under section 4(a)(2) of this
chapter may apply to the department for a site-specific approval for the
activity in accordance with this section. and the rules adopted under
section 4(c) of this chapter.
(b) An applicant for a site-specific approval under this section must
provide information to the department on the need to perform the
activity described in subsection (a), including the following:
(1) Information showing the location and area needed to be
disturbed within the Class III wetland.
(2) Lack of reasonable alternatives to the disturbance of the area
referred to in subdivision (1).
HEA 1383 Speaker of the House of Representatives
President of the Senate
President Pro Tempore
Governor of the State of Indiana
Date: Time:
HEA 1383